Petition for Writ of Certiorari — Franklin Paul Eller, Jr., Petitioner v. United States

Supreme Court briefAug 17, 2023

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No. 23-______

IN THE

Supreme Court of the United States

FRANKLIN PAUL ELLER, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF

CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A

WRIT OF CERTIORARI

MICHAEL L. BURKE

Counsel of Record

Assistant Federal Public Defender

850 West Adams Street, Suite 201

Phoenix, Arizona 85007

(602) 382-2700 voice

michael_burke@fd.org

Counsel for Petitioner

QUESTION PRESENTED

For more than a century, this Court has recognized

the exclusionary rule as the appropriate remedy for

violations of the Fourth Amendment. See Weeks v.

United States, 232 U.S. 383 (1914); see also Mapp v.

Ohio, 367 U.S. 643, 651 (1961) (acknowledging that

the exclusionary rule “is an essential ingredient of the

Fourth Amendment”). But the Court has also

emphasized that application of the exclusionary rule

should be a “last resort,” rather than a “first impulse.”

Hudson v. Michigan, 547 U.S. 586, 591 (2006). In

keeping with this view, the Court has carved out

several exceptions to application of the exclusionary

rule. See, e.g., Arizona v. Evans, 514 U.S. 1 (1995)

(good faith exception); Nix v. Williams, 467 U.S. 431

(1984) (inevitable discovery doctrine); and Murray v.

United States, 487 U.S. 533 (1988) (independent

source doctrine).

This Court, however, has yet to recognize an exception

to the exclusionary rule regularly applied by lower

federal and state courts. Under the “severance

doctrine,” a court presented with an impermissibly

overbroad search warrant may be able to “sever” the

portion of the search warrant that violates the Fourth

Amendment from the remaining constitutionally

permissible portions of that warrant, thereby allowing

enforcement of the non-tainted portion of the warrant.

In this case, the United States Court of Appeals for

the Ninth Circuit held that severance was the

appropriate response to a claim that a search warrant

served on the Internet Service Provider Yahoo!, Inc.

(“Yahoo”) was impermissibly overbroad and therefore

violative of the Fourth Amendment. The Ninth

Circuit’s flawed application of the severance doctrine

to the search warrant in this case, however, places the

Ninth Circuit at odds with other circuit courts of

appeal and creates uncertainty concerning the scope

and application of the severance doctrine.

This petition for writ of certiorari presents the

following questions:

(1) Is severance of any overbroad warrant a

permissible exception to the exclusionary rule;

and if so,

(2) What it is the appropriate method to determine

whether a warrant is capable of severance?

iii

PARTIES TO THE PROCEEDING

Franklin Paul Eller, Jr., petitioner on review, was

the appellant below.

The United States of America, respondent on

review, was the appellee below.

RELATED PROCEEDINGS

United States v. Franklin Paul Eller, Jr., No. 2010425 (9th Cir.). Opinion and memorandum

disposition filed on January 25, 2023; Petition for

Rehearing and Rehearing En Banc denied April 4,

2023.

United States v. Franklin Paul Eller, Jr., No. 3:16cr-08207-DGC-1 (D. Ariz.) Judgment and sentence

entered December 17, 2020.

TABLE OF CONTENTS

Question Presented .................................................... i

Parties to the Proceeding .......................................... iii

Related Proceedings .................................................. iii

Table of Authorities ................................................... v

Proceedings Below .................................................... 1

Statement of Jurisdiction .......................................... 1

Constitutional Provision Involved ............................ 1

Statement of the Case ............................................... 2

Reasons for Granting the Writ .................................. 7

Conclusion ................................................................ 17

Appendix:

Opinion of the Ninth Circuit, United States v.

Franklin Paul Eller, Jr., No. 20-10425 (Jan. 25,

2023) ........................................................................ 1a

Memorandum Decision of the Ninth Circuit, United

States v. Franklin Paul Eller, Jr., No. 20-10425 (Jan.

25, 2023) ................................................................ 11a

Order Denying Petition for Rehearing and Rehearing

En Banc, United States v. Franklin Paul Eller, Jr.,

No. 20-10425 (Apr. 4, 2023) .................................. 18a

Judgment and Order of the District of Arizona,

United States v. Franklin Paul Eller, Jr., No. 3:16-cr08207-DGC-1 (D. Ariz.) (Dec. 17, 2020) ................ 19a

Warrant/Affidavit in Support of Search Warrant . 31a

TABLE OF AUTHORITIES

Cases

Andresen v. Maryland, 427 U.S. 463 (1976) .............. 7

Illinois v. Gates, 462 U.S. 213 (1983) ......................... 5

In re Grand Jury Subpoenas Dated December 10,

1987, 926 F.2d 847 (9th Cir. 1991) ........... 9, 10, 12, 13

State v. Maddox, 116 Wash. App. 796, 67 P.3d 1135,

1141 (2003) ................................................................ 15

United States v. Cardwell, 680 F.2d 75 (9th Cir.

1982) .................................................................... 7, 8, 9

United States v. Christine, 687 F.2d 749 (3d Cir.

1982) .......................................................................... 14

United States v. Cotto, 995 F.3d 786 (10th Cir. 2021)

................................................................................... 14

United States v. Eller, 2020 WL 58569 (D. Ariz. 2020)

..................................................................................... 5

United States v. Flores, 802 F.2d 1028 (9th Cir. 2015)

................................................................. 11, 12, 13, 15

United States v. Galpin, 720 F.3d 436 (2d Cir. 2013)

................................................................................... 14

United States v. George, 975 F.2d 72 (2d Cir.1992). 14

United States v. Gomez-Soto, 723 F.2d 649 (9th Cir.

1984) ............................................................ 8, 9, 10, 11

United States v. Kow, 58 F.3d 423 (9th Cir. 1995) ... 9,

10, 13

United States v. Naugle, 997 F.2d 819 (10th Cir.

1993) .................................................................... 14, 15

United States v. Sears, 411 F.3d 1124 (9th Cir. 2005)

............................................................................. 10, 11

United States v. Sells, 463 F.3d 1148 (10th Cir. 2006)

............................................................................. 14, 15

United States v. Spilotro, 800 F.2d 959 (9th Cir.

1986) .......................................................6, 8, 10, 11, 13

United States v. Stubbs, 873 F.2d 210 (9th Cir. 1989)

..................................................................................... 9

United States Constitution

Fourth Amendment ........................................... passim

Federal Statutes

U.S.C. § 18 U.S.C. § 2422(b) ....................................... 4

Court Rules

Sup. Ct. R. 10(a) .......................................................... 7

Sup. Ct. R. 10(c) ......................................................... 7

Petitioner Franklin Paul Eller respectfully asks the

Court to review the decision of the United States

Court of Appeals for the Ninth Circuit in this matter.

PROCEEDINGS BELOW

The published and unpublished decisions of the court

of appeals are reproduced in the appendix at page 1a

and 11a. The published decision is also reported at 57

F.4th 1117 (9th Cir. 2023). The district court’s

judgment and sentence for Mr. Eller is reproduced in

the appendix at page 19a and is not reported.

STATEMENT OF JURISDICTION

The court of appeals issued its opinion and

memorandum decision in this case on January 25,

2023. That court denied a timely filed petition for

rehearing on April 4, 2023. By order of June 12, 2023

(Application No. 22A1068), Justice Kagan extended

the time for filing the petition to and including August

17, 2023. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

UNITED STATES CONSTITUTIONAL

PROVISION INVOLVED IN THIS CASE

The Fourth Amendment to the United States

Constitution provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

STATEMENT OF THE CASE

This petition for writ of certiorari concerns a

sweepingly broad search warrant that permitted the

FBI to obtain from Yahoo all of Franklin Eller’s sent

and received emails (including deleted and draft

emails), instant messages, and any attachments, from

the date of the creation of his Yahoo account until the

date of the warrant, a period of over nine years. This

unfettered search of Mr. Eller’s email account was

based solely on an affidavit attesting that the FBI had

probable cause to believe that, between January and

May 2012, he received child pornography on the

account. (Appendix (“App.”) at 13a, 55a)

The FBI Investigation

The FBI’s investigation in this case began in

September 2014, when Yahoo submitted a

CyberTipline Report to the National Center for

Missing and Exploited Children (“NCMEC”) reporting

the discovery of suspected child pornography images

found in the account of a Yahoo email user

(hannah_sweetycole@yahoo.com) in the Philippines.

(App. at 51a) From the CyberTipline Report, the FBI

developed suspicion that other Yahoo account users in

the Philippines coordinated with the owner of

hannah_sweetycole@yahoo.com to sell “sexually

explicit shows and/or images” of children. (App. at 51a

to 53a) Negotiation for many of these transactions

occurred via Yahoo Messenger, a now defunct instant

messaging service operated by Yahoo. (App. at 53a)

The FBI’s extensive investigation into the purported

sales and purchases of these shows and images was

labeled “Operation Swift Traveler.” The investigation

revealed that approximately 70 Yahoo email users

communicated with various Yahoo email accounts in

the Philippines regarding sex shows involving

children. Mr. Eller was one of the Yahoo account

holders believed to have been in contact with the

Philippines suspects.

In November 2014, the FBI obtained the search

warrant at issue in this appeal from the United States

District Court for the District of Columbia allowing it

to search the accounts of several Yahoo email users,

including Mr. Eller, believed to be associated with the

transactions being investigated in Operation Swift

Traveler. The multi-suspect warrant contained a

single section describing the “[i]nformation to be

disclosed by Yahoo! (the “Provider”) to facilitate

execution of the warrant.” (App. at 62a to 63a) This

section pertained to each of the suspects identified in

the warrant. The provision at issue in this petition

required Yahoo to disclose:

(a) The contents of all e-mails

associated with the account, from the time

of account creation to the present,

including stored or preserved copies of emails sent to and from the account, e-mail

attachments, draft e-mails, the source and

destination addresses associated with

each e-mail, the date and time at which

each e-mail was sent, and the size and

length of each email[.]

(App. at 62a)

Mr. Eller’s Yahoo account was created in 2005.

Because the warrant required disclosure of all data

from the date of the account’s creation, the records

disclosed by Yahoo pursuant to the warrant in 2014

contained nearly a decade of data that fell outside the

January-to-May-2012 timeframe for which the FBI

alleged it had probable cause to search.

Once the FBI obtained the many years of records from

Mr. Eller’s Yahoo account, a special agent conducted

a multi-day review of those records. The special agent

reviewed more than 1552 of Mr. Eller’s Yahoo email

conversations. She discovered that none of those

emails related to any child sexual exploitation

matters. The special agent also found no suspected

images of child pornography in the multitude of

records.

During her multi-day search of Mr. Eller’s entire

Yahoo account history, the special agent also read

approximately 3736 instant message chats. Among

those thousands of instant messages, the special

agent found a few that appeared to involve discussions

about live sex shows involving children. Those

messages, however, did not come from the January-toMay-2012 timeframe alleged in the Yahoo Affidavit.

Rather, the messages identified in the special agent’s

report were created more than two years later, in

August 2014.

The District Court Proceedings

A grand jury in the District of Arizona indicted Mr.

Eller, an Arizona resident, in September 2016 on four

counts of coercion and enticement of minors, in

violation of 18 U.S.C. § 2422(b). The four counts,

derived from the instant messages obtained from Mr.

Eller’s Yahoo Instant Messenger archives, alleged

that the offenses occurred in 2013 and 2014. Several

months later, the government obtained a superseding

indictment charging Mr. Eller with additional counts

involving production and receipt of child pornography,

all pertaining to the four coercion and enticement

accounts alleged in the original indictment. By the

time of trial, the government had elected to prosecute

each of the counts as attempts, rather than completed

crimes.

Prior to trial, Mr. Eller moved to suppress evidence

obtained pursuant to the Yahoo warrant. Among the

arguments he raised in that motion was that the

Yahoo Warrant was impermissibly overbroad as it

pertained to him because it permitted the FBI to

search the entirety of his email account, including

thousands of emails and instant messages, without

regard to the probable cause time frame alleged in the

warrant affidavit. The district court denied the

motion, however, finding that “[g]iven all the

circumstances

surrounding

the

government’s

investigation as set forth in the [Yahoo warrant

affidavit], there was ‘a fair probability that

contraband or evidence of a crime [would have been]

found’ on Defendant’s email outside of the limited date

range presented by the government.” United States v.

Eller, 2020 WL 58569, at *9 (D. Ariz. 2020) (quoting

Illinois v. Gates, 462 U.S. 213, 238 (1983)).

At Mr. Eller’s trial in 2020, the government presented

the jury with transcripts of instant messages from

2013 and 2014 between Mr. Eller and four Yahoo

account holders. The instant message transcripts,

which were the keystone of the government’s case

against Mr. Eller, contained conversations in which

the participants appeared to be negotiating for the

purchase of live sex shows involving children.

The jury returned verdicts of guilt on all counts, and

the district court subsequently imposed concurrent

180-month terms on each count.

Ninth Circuit Proceedings

On appeal, Mr. Eller again raised his overbreadth

challenge to the Yahoo Warrant. In response, while

still maintaining that the warrant was not overbroad,

the government also argued for the first time that,

even if the warrant were overbroad, both the

severance doctrine and the good faith doctrine

permitted the panel to affirm the district court’s

denial of the motion to suppress. The government

maintained that, despite any overbreadth, under the

doctrine of severance, items of trial evidence seized

pursuant to valid portions of the warrant need not be

suppressed.

The United States Court of Appeals for the Ninth

Circuit (Senior Circuit Judge Bybee, Circuit Judge

Owens, and Circuit Judge Collins) agreed, holding

that any overbreadth in the Yahoo Warrant could be

remedied by applying the severance doctrine.

The Ninth Circuit expressly declined to decide

whether the warrant was overbroad. (App. at 12a)

Rather, it concluded that probable cause existed to

search Mr. Eller’s Yahoo account at least from

January 2012 onward.

(App. at 13a)

Then,

purporting to rely on Ninth Circuit opinions applying

the severance doctrine, the panel reasoned, “Thus,

even if the search warrant was overbroad as to Eller’s

pre-2012 data, we need not decide the issue because

the trial exhibits in dispute are from 2013 and 2014—

a period for which the warrant affidavit gave probable

cause and is therefore ‘sufficiently specific and

particular’ to support severance.” (App. at 13a

(quoting United States v. Spilotro, 800 F.2d 959, 967

(9th Cir. 1986)))

Mr. Eller now petitions this Court for a writ of

certiorari on the Ninth Circuit’s application of the

severance doctrine.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit’s memorandum decision in Mr.

Eller’s appeal decided an important question of

federal law that has not been, but should be, settled

by this Court. See Sup. Ct. R. 10(c). Specifically,

without guidance from this Court concerning the

appropriateness, scope, and proper application of the

severance doctrine, the Ninth Circuit has developed a

muddled and contradictory array of case law on the

use of the severance doctrine to remedy overbroad

warrants. In addition, as explained below, Ninth

Circuit case law is at odds with the decisions of other

circuit courts of appeal concerning the scope and

proper application of the severance doctrine, thereby

creating a circuit split. See Sup. Ct. R. 10(a).

Development of the Severance Doctrine in the

Ninth Circuit

United States v. Cardwell, 680 F.2d 75 (9th Cir. 1982),

is the first opinion in which the Ninth Circuit

addressed the issue of severance of an overbroad

search warrant in the context of a motion to suppress

evidence in a criminal proceeding. In Cardwell, the

Court observed that, in Andresen v. Maryland, 427

U.S. 463 (1976), this Court “generally approved the

severance of infirm portions of [a] warrant from valid

portions, suppressing or returning items seized under

the former portion, but not the latter.” Cardwell, 680

F.2d at 78 (citing Andresen, 427 U.S. at 482 n.11). The

Ninth Circuit emphasized in Cardwell, however, that

“severance is not always possible. If no portion of the

warrant is sufficiently particularized to pass

constitutional muster, then total suppression is

required.” Id. Because the Court in Cardwell found

that the warrant was too overbroad to “pass

constitutional muster,” it did not permit severance in

that case.

Two years after Cardwell, the Ninth Circuit again

addressed the issue of severance in United States v.

Gomez-Soto, 723 F.2d 649 (9th Cir. 1984). There, the

Court evaluated a challenge to a warrant that

authorized the seizure of numerous items identified in

thirteen separate paragraphs of the warrant. See

Gomez-Soto, 723 F.2d at 651-52 n.**. The Court found

that one of the thirteen paragraphs “lack[ed] objective

guidelines to aid the determination of what may or

may not be seized” and was “thus unconstitutionally

vague.” Id. at 654. Citing Cardwell, the Court

observed that its conclusion that one of the thirteen

paragraphs was impermissibly vague did not require

it to invalidate the entire warrant: “This court has

embraced the doctrine of severance, which allows us

to strike from a warrant those portions that are

invalid and preserve those portions that satisfy the

fourth amendment. Only those articles seized

pursuant to the invalid portions need be suppressed.”

Gomez-Soto, 723 F.2d at 654 (citing Cardwell, 680

F.2d at 78). The Court determine that the offending

paragraph could be severed from the warrant, which

would permit it to “uphold the portion that remains.”

Id. at 654.

The Ninth Circuit next addressed severance in United

States v. Spilotro, 800 F.2d 959 (9th Cir. 1986).

Finding the warrants at issue in that case

impermissibly overbroad, the court considered

whether the offending portions of the warrants could

be severed. Citing Cardwell and Gomez-Soto, the

court observed that “[i]n this circuit we follow the rule

that where invalid portions of the warrant may be

stricken and the remaining portions held valid,

seizures pursuant to the valid portions will be

sustained.” Spilotro, 800 F.2d at 967. But the court

emphasized: “[The severance] doctrine requires,

however, that identifiable portions of the warrant be

sufficiently specific and particular to support

severance.” Id. (Emphasis added.) Specifically, the

court noted the importance that offending portions of

the warrant be “set forth in textually severable

portions.” Id. at 968 (emphasis added). Unable to find

any such “identifiable portions of the warrant,” the

court affirmed the district court’s order suppressing

the seized evidence. Id.; id. at 968.

Relying on Spilotro, the Ninth Circuit again affirmed

a district court’s suppression order in United States v.

Stubbs, 873 F.2d 210 (9th Cir. 1989). In Stubbs, the

court reiterated that, where the challenged warrant is

overboard “as a whole,” the severance doctrine is

inapplicable. Id. at 212, 213. The Ninth Circuit would

later reach a similar decision in United States v. Kow,

58 F.3d 423, 428 (9th Cir. 1995).

In contrast, In re Grand Jury Subpoenas Dated

December 10, 1987, 926 F.2d 847 (9th Cir. 1991), is a

case in which the Ninth Circuit found severance to be

appropriate. There, the court upheld the district

court’s decision to sever portions of two warrants

served on separate offices of a law firm. Id. at 851.

The warrants sought documents containing

references to “Doe One or any of twenty-one other

individuals or business entities which the

Government suspected of being involved in [a] money

laundering scheme.” Id. The district court found that

there was no probable cause as to nine individuals or

entities named in the warrants. Id. at 852. Affirming

the district court’s ruling, the court held that “[t]he

fact that the district court found that the seizure of

the property of nine persons or entities was invalid as

not connected to the crime described in the affidavit

[did] not affect the validity of the warrants insofar as

probable cause exist[ed] to search for the papers of the

other persons or entities identified in the . . .

warrants.” Id. at 858. Citing Gomez-Soto and

Spilotro, the Court observed that “valid portions of a

search warrant may be severed from the invalid

portions.” Particularly relevant to Mr. Eller’s case,

however, the court emphasized that “severance is not

available when the valid portion of the warrant is ‘a

relatively insignificant part’ of an otherwise invalid

search.” In re Grand Jury Subpoenas, 926 F.2d at 858

(quoting Spilotro, 800 F.2d at 967). See also Kow, 58

F.3d at 428.

The Ninth Circuit addressed the issue of severance

once again in United States v. Sears, 411 F.3d 1124

(9th Cir. 2005), and once again it affirmed a district

court’s decision to sever portions of a warrant. Sears

involved a discrepancy between an exhibit describing

items to be seized, which the police provided to the

issuing magistrate, and a revised version of that

exhibit inadvertently provided to the officers who

executed the warrant. 411 F.3d at 1126. The

language of the revised exhibit expanded the scope of

the search by including the phrases “or nearby” and

“but not limited to,” which did not appear in the

exhibit provided to the issuing magistrate. Id.

The court determined that severance was possible in

Sears. Specifically, it concluded that the words “or

nearby” and “but not limited to,” which rendered the

warrant overbroad, could be “excise[d]” from the

warrant exhibit. 411 F.3d at 1130. Critical to the

court’s reasoning was that, as Spilotro required, these

words represented only a small portion of the scope of

the search as a whole. Id. at 1130-31. As the Court

noted, “Although the [words “or nearby” and “but not

limited to”] enlarged the scope of the warrant, the

items for which [the issuing magistrate] found

probable cause—in particular, cocaine and narcotics

paraphernalia—formed ‘the focus, and the vast

majority’ of the search.” Id. at 1131.

A decade after Sears, the Ninth Circuit again

employed the severance doctrine, but in a much

different manner. In United States v. Flores, 802 F.2d

1028 (9th Cir. 2015), the defendant moved to suppress

the government’s search of her entire Facebook

account, arguing, among other things, that the

warrant was overbroad. See id. at 1044-46. On

appeal, the court determined, as did the panel in this

case, that it “need not decide whether the warrant was

overbroad.” Id. at 1045. Rather, the court concluded

that it could employ the severance doctrine.

The court’s application of the severance doctrine in

Flores, however, was flawed. The opinion properly

cites Gomez-Soto for the principle that the severance

doctrine “allows [a court] to strike from a warrant

those portions that are invalid and preserve those

portions that satisfy the Fourth Amendment. Only

those articles seized pursuant to the invalid portions

need be suppressed.” Flores, 802 F.3d at 1045

(quoting Gomez-Soto, 723 F.2d at 654). Rather than

reviewing the language and contents of the warrant,

however, the court in Flores then proceeded to

consider the evidence presented at trial. Id. at 104546. The court observed that the only Facebook

messages introduced at trial were sent on the day of

the defendant’s arrest for the crime “and thus fell

well-within even the narrowest of temporal limits.”

Id. The court concluded, “Therefore, even though the

warrant had no temporal limit, the district court did

not err in denying Flores’s motion to suppress.” Id. at

1046.

The Ninth Circuit’s cursory application of the

severance doctrine in Flores was inconsistent with the

development of that doctrine and cannot support the

ruling reached by the Ninth Circuit in Mr. Eller’s case.

Unlike the other severance doctrine opinions

previously issued by the Ninth Circuit, Flores’s

analysis rested entirely on what evidence was actually

presented at trial, rather than on the scope and

language of the warrant itself.

A close reading of Flores reveals that the Ninth

Circuit was, in essence, employing a quasi-harmlesserror analysis, rather than a proper severance

doctrine analysis. Specifically, the court reasoned

that “the district court did not err in denying Flores’s

motion to suppress” because only limited evidence

from the Facebook account was later admitted at trial.

802 F.3d at 1045-46. No other circuit court opinion

employs this analysis, and with good reason. The

analysis in Flores does not even address the Fourth

Amendment implications in that case: the warrant

allowed the government to search and seize over

11,000 pages of data when “only approximately 100

pages were truly responsive to the warrant.” Id. at

1044. Upholding such a search conflicts with case law

expressly holding that “severance is not available

when the valid portion of the warrant is ‘a relatively

insignificant part’ of an otherwise invalid search.” In

re Grand Jury Subpoenas, 926 F.2d at 858 (quoting

Spilotro, 800 F.2d at 967); see also Kow, 58 F.3d at

428.

The Ninth Circuit’s Application of the Severance

Doctrine in Mr. Eller’s Case

Like Flores, the memorandum decision in Mr. Eller’s

case failed to properly apply the severance doctrine.

Rather, it held that, “even if the search warrant was

overbroad as to Eller’s pre-2012 data,” because

probable cause existed to search Mr. Eller’s account

after 2012, and because the only trial exhibits

admitted a trial were from 2013 and 2014, “severance”

was appropriate. (App. at 13a) As in Flores, this

analysis is essentially a harmless-error analysis,

rather than one grounded in the Fourth Amendment.

For example, the court in Mr. Eller’s case did not

consider whether “identifiable portions of the warrant

[were] sufficiently specific and particular to support

severance.” Spilotro, 800 F.2d at 967 (emphasis

added). Had it done so, it would have concluded that

no portion of the Yahoo warrant applicable to Mr.

Eller was capable of being severed from other

portions. Further, the court failed to consider whether

“the valid portion of the warrant [was] ‘a relatively

insignificant part’ of an otherwise invalid search.” In

re Grand Jury Subpoenas, 926 F.2d at 858 (quoting

Spilotro, 800 F.2d at 967); see also Kow, 58 F.3d at

428. Had it done so, it would have concluded that the

two-year period for which it found probable cause to

search Mr. Eller’s Yahoo account paled in comparison

to the nine-year search the FBI conducted. Because

the two-year period the panel found proper was a

“relatively insignificant part” of an otherwise invalid

nine-year search, severance was not proper. Spilotro,

800 F.2d at 967.

The Circuit Split Between the Ninth Circuit and its

Sister Circuits

The Ninth Circuit’s application of the severance

doctrine in Flores and in Mr. Eller’s case places that

court in conflict with the holdings of other circuit

courts of appeal. See, e.g., United States v. Sells, 463

F.3d 1148, 1155-62 (10th Cir. 2006) (setting forth

detailed instructions for application of severance

doctrine); United States v. Cotto, 995 F.3d 786, 798-99

(10th Cir. 2021) (applying Sells); United States v.

Galpin, 720 F.3d 436, 448-449 (2d Cir. 2013) (adopting

Tenth Circuit analytical approach in Sells and citing

Spilotro in support); and United States v. Christine,

687 F.2d 749, 754 (3d Cir. 1982) (“By redaction, we

mean striking from a warrant those severable phrases

and clauses that are invalid for lack of probable cause

or generality and preserving those severable phrases

and clauses that satisfy the Fourth Amendment.”).

The Tenth Circuit’s application of the severance

doctrine illustrates the conflict between the Ninth

Circuit and its sister circuits. In United States v.

Naugle, 997 F.2d 819, 822 (10th Cir. 1993), the Tenth

Circuit, citing the Second Circuit, observed: “To make

the severability doctrine applicable the valid portions

of the warrant must be sufficiently particularized,

distinguishable from the invalid portions, and make

up the greater part of the warrant.” (Citing United

States v. George, 975 F.2d 72, 79-80 (2d Cir.1992).)

In United States v. Sells, the Tenth Circuit elucidated

the multi-step analysis required to apply the doctrine.

463 F.3d at 1155-60. First, the court must divide the

warrant into individual phrases, clauses, paragraphs,

or categories of items. Id. at 1156. Next, the court

must determine whether some portion of the warrant

“describes with sufficient particularity items to be

seized for which there is probable cause.”

Id.

“‘Otherwise, there is nothing for the severability

doctrine to save.’” Id. (quoting State v. Maddox, 116

Wash. App. 796, 67 P.3d 1135, 1141 (2003)).

The next step in the Sells analysis requires the court

to determine whether some part of the warrant is both

constitutionally valid and distinguishable from the

invalid portions. Sells, 463 F.3d at 1158 (citing

Naugle, 997 F.2d at 822). “Where . . . each of the

categories of items to be seized describes distinct

subject matter in language not linked to language of

other categories, and each valid category retains its

significance when isolated from rest of the warrant,

then the valid portions may be severed from the

warrant.” Id. However, the court must first determine

that the valid portions of the warrant “make up the

greater part of the warrant.” Id. at 1158-59. This step

of the analysis “focuses on the warrant itself rather

than upon an analysis of the items actually seized

during the search.” Id. at 1159. Thus, under the

analysis required by the Tenth Circuit, a court may

apply the severance doctrine only where the valid

portions of the warrant are sufficiently particularized,

distinguishable from the invalid portions, and make

up the greater part of the warrant. Id. at 1161.

In contrast with the application of the severance

doctrine in other circuits, the Ninth Circuit, through

its rulings in Flores and this case, has fashioned a

version of the doctrine that focuses not on the Fourth

Amendment’s core concern with the protection of

privacy, nor with the validity of the warrant at issue,

but rather on an entirely distinct, evidentiary issue.

Specifically, under Ninth Circuit law as fashioned by

Flores and this case, a court can apply the severance

doctrine

regardless

the

vastness

and

inappropriateness of the government’s search of the

defendant’s property and regardless of whether the

warrant itself is capable of being severed into valid

and invalid parts. Rather, under the Ninth Circuit’s

development of the severance doctrine, “severance” of

the “warrant” is permissible so long as the evidence

ultimately admitted at the defendant’s trial could

have been obtained by use of a warrant that, unlike

the warrant with which the court is actually

presented, complied with the dictates of the Fourth

Amendment. Such an analysis, however, is entirely

divorced from the privacy concerns that underpin the

Fourth Amendment.

Under the Ninth Circuit’s

application of the severance doctrine, the government

is now free to conduct a search of limitless scope, so

long as the evidence it ultimately chooses to present

at trial could have been obtained by a valid warrant.

Such an approach contravenes the very core of the

Fourth Amendment.

Mr. Eller therefore respectfully requests that this

Court grant certiorari to resolve the important federal

question of the severance doctrine’s role in Fourth

Amendment jurisprudence and to resolve the circuit

split that exists concerning the proper scope and

application of the doctrine.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,