IN RE: SEARCH WARRANT (2022)

RULING ON THE GOVERNMENT'S MOTION FOR EXTENSION OF DELAYED NOTICE NUNC PRO TUNC

I. INTRODUCTION

This matter is before the Court on the government's Motion for Extension of Delayed Notice Nunc Pro Tunc. (Doc. No. 13). In this case, the government makes a belated request for an order authorizing a 90-day delay in service of notice of the execution of a warrant permitting the government to acquire location data associated with a cellular telephone, pursuant to 18 U.S.C. § 3103a(c).

II. FACTUAL BACKGROUND

On November 15, 2021, the undersigned issued a search warrant permitting the government to obtain prospective location information relating to a cellular telephone (“Target Telephone”), pursuant to 18 U.S.C. §§ 2703(c)(1)(A) and 2711(3)(A) (“Search Warrant”). The search warrant authorized delayed notification for 30 days, as requested by the government.

The government states that the Search Warrant relates to a criminal investigation that has remained active since November 15, 2021. (Doc. No. 17 at 1). The subject of that investigation is a drug trafficking operation involving the user of the Target Telephone. (Id.). The government contends that there is reasonable cause to believe that immediate notification of the Search Warrant to the user of the Target Telephone would have an adverse effect on the investigation in that its subjects would have an opportunity to flee, and evidence may be tampered with or destroyed. (Doc. No. 17 at 2).

The government acknowledges that its authority to delay serving notice of the Search Warrant on the user of the Target Telephone expired on January 14, 2022. (Doc. No. 17 at 1). It further acknowledges that, “[d]ue to an administrative clerical error, [it] failed to calendar the January 14, 2022 deadline to request an extension of the delayed notice authorization.” (Id.). Indeed, the government did not file its Motion for Extension of Delayed Notice Nunc Pro Tunc until June 6, 2022. (Doc. No. 13).

After reviewing the government's motion, the Court requested further briefing on the following two related issues: (1) what authority, if any, the Court has to retroactively extend its authorization of delayed notice of the Search Warrant after the authorized period of delayed notification initially authorized by the Court lapsed on January 14, 2022, and (2) what basis, if any, the government had to withhold notice of the Search Warrant after the period of delayed notification authorized by the Court lapsed on January 14, 2022. (Doc. No. 15). The government timely filed a Supplemental Brief on June 21, 2022. (Doc. No. 17).

To date, the government has not provided notice of the Search Warrant to the user of the Target Telephone. The government requests that notice of the Search Warrant be delayed until October 13, 2022. (Doc. No. 17 at 7). The government states that, if its ongoing investigation continues beyond October 13, 2022, it will make further, timely application to this Court requesting continued authorization to delay notice of the Search Warrant. (Id.).

III. THE GOVERNMENT'S ARGUMENT

The government argues that it would have successfully demonstrated good cause to justify delaying notice of the Search Warrant had it requested continued authorization to do so on or before the January 14, 2022 deadline. The government contends that, since the investigation was ongoing on January 14, 2022, and has continued ever since, providing notice of the Search Warrant to the user of the Target Telephone would have jeopardized the investigation. Consequently, the government asserts that its error constitutes excusable neglect and that the Court should grant its Motion for Extension of Delayed Notice Nunc Pro Tunc.

The government relies on Federal Rule of Criminal Procedure 45(b)(1) as the basis for its argument. Rule 45(b)(1) establishes the court's authority to grant belated requests for extensions of time based on excusable neglect. It provides, in pertinent part: “When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party's motion made ․ after the time expires if the party failed to act because of excusable neglect.” Fed. R. Crim. P. 45(b)(1)(B).

IV. DISCUSSION

In Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), the Supreme Court offered a lengthy discussion of the meaning of the term “excusable neglect.” Although the Court interpreted that term's meaning in the context of the Federal Rules of Bankruptcy Procedure, courts have applied its analysis in criminal cases. See, e.g., In the Matter of the Application of the U.S. for a Warrant, 2015 WL 667923 (D. Kan. 2015). The Court noted that “neglect” is “ ‘to give little attention or respect’ to a matter, or ‘to leave undone or unattended to esp[ecially] through carelessness.’ ” Pioneer, 507 U.S. at 388, 113 S.Ct. 1489 (quoting Webster's Ninth New Collegiate Dictionary 791 (1983)) (emphasis in original). Typically, inadvertence, ignorance of rules, and mistakes in construing rules do not constitute excusable neglect; however, it “is a somewhat ‘elastic concept’ and is not limited strictly to omissions caused by circumstances beyond the control of the movant.” Id. at 392, 113 S.Ct. 1489 (internal citation omitted). The determination of whether excusable neglect exists “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Id. at 395, 113 S.Ct. 1489. To determine whether the moving party has satisfied its burden of demonstrating excusable neglect, a court must consider the following four factors: (1) the danger of prejudice to the nonmoving party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the movant's reasonable control; and (4) whether the movant acted in good faith. Id. at 395, 113 S.Ct. 1489.

Federal Rule of Criminal Procedure 41(f), which governs the execution and return of search warrants, permits a magistrate judge to “delay any notice required by this rule if the delay is authorized by statute.” Fed. R. Crim. P. 41(f)(3). In this case, the government relies upon the delayed notice provision contained in 18 U.S.C. § 3103a(b), which provides that any required notice of a search warrant may be delayed for a period of up to 30 days after its execution “if the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result.” 18 U.S.C. § 3103a(b)(3). “Adverse result” is defined in 18 U.S.C. § 2705 to include “seriously jeopardizing an investigation.” 18 U.S.C. § 2705(a)(2)(E).

Upon a showing of good cause, a magistrate judge is permitted to extend the period of delayed notice for up to 90 days, provided that the government makes an “updated showing of the need for further delay.” 18 U.S.C. § 3103(a)(c). A delay beyond 90 days is permitted only when “the facts of the case justify a longer period of delay.” Id.

In order to determine whether the government has satisfied its burden of demonstrating that its error constitutes excusable neglect, the Court examines each of the four Pioneer factors.

1. Danger of Prejudice to the Nonmoving Party

The government argues that “there is no danger of prejudice to the user of the Target Telephone” since the government's “error did not occur until after the tracking ceased pursuant to the respective warrant.” (Doc. No. 17 at 4).

Based on the government's representations in its brief, it appears to the Court that, at the time the application for an extension of delayed notice was due, the government could have demonstrated that such an extension was warranted. Stated differently, there would have been reasonable cause to believe that providing immediate notification of the Search Warrant at that time might have an adverse result, namely “seriously jeopardizing an investigation.” See 18 U.S.C. §§ 2705(a)(2)(E), 3103a(b). Indeed, as the government states, it is likely that, “[i]f the user of the Target Telephone were alerted to the [Search Warrant], he/she would notify other potential subjects of the investigation, alter his/her behavior, or switch mobile devices, ․ which would prevent law enforcement from identifying [the subjects’] patterns of behavior.” (Doc. No. 17 at 6). The Court agrees with the government's contention that, if the user of the Target Telephone and/or other subjects of the investigation were to learn of the Search Warrant, they could move contraband from potential storage locations, discard their mobile devices, alter their patterns of conduct, and/or destroy evidence, such as information saved on their mobile devices. (Id.).

It is apparent that the government's investigation was ongoing on January 14, 2022, and that notice of the Search Warrant on that date could have seriously jeopardized its integrity. Had the government timely filed motions for extensions of delayed notice detailing the relevant facts and circumstances its requests, the Court would have granted extensions in thirty-day increments through the filing of the government's motion and for an additional thirty-day period going forward. On that basis, the Court concludes that there is little danger that granting the government's Motion for Extension of Delayed Notice Nunc Pro Tunc (Doc. No. 13) until July 15, 2022 would prejudice the nonmoving party. This factor weighs in favor of the government.

2. Length of Delay and Its Potential Impact on Judicial Proceedings

The government filed its Motion for Extension of Delayed Notice 143 days late. This is a significant delay, as the government concedes. (Doc. No. 17 at 4).

The government argues that, “given the ongoing nature of investigation since the [Search] Warrant, had [it] timely filed requests to extend the delayed notice authorization, the Court would have likely found ‘good cause’ to delay notice and granted the motion.” (Id.). Although this assertion is accurate, it has no bearing on the Court's analysis under the second Pioneer factor. The relevant consideration here is the potential impact of the government's delay on these judicial proceedings, rather than the potential impact of immediate notice of the Search Warrant.

The Court acknowledges that the government's delay is unlikely to impact these judicial proceedings; however, this is so only because the government withheld notice when it was due and continued its investigation. It would be counterintuitive for the Court to consider the lack of impact of the government's delinquency on this proceeding since doing so would effectively reward the government for failing to comply with a deadline. The Court acknowledges the oddity of considering the impact of the government's delay on judicial proceedings where, as here, there are no criminal charges pending. Insofar as the Court's issuance of the Search Warrant may be considered a judicial proceeding, however, the Court concludes that it was significantly impacted by the government's delay. This factor does not weigh in favor of the government.

3. Reason for the Delay, Including Whether It Was Within the Movant's Reasonable Control

The government explains that “the reason for the delay was due to a clerical oversight”—once the Court authorized delayed notification until January 14, 2022, the government neglected to calendar the deadline. (Doc. No. 17 at 4).

In Pioneer, the Court noted examples of possible reasons for a party's failure to meet a deadline, including “inadvertence, miscalculation, or negligence,” all of which constitute excusable neglect. 507 U.S. at 387-88, 113 S.Ct. 1489.

The government's failure in this case appears to involve an unfortunate and excusable calendaring error. Accordingly, this factor weighs in favor of the government.

4. Good faith

The Court does not question the motives or intent behind the government's failure to timely request an extension of the Court's authorization to delay notice of the Search Warrant. The Court accepts the government's representation that the error resulted from an administrative oversight. Upon realizing that the deadline had passed, the government informed the Court of the oversight and requested an extension without delay. As such, the Court concludes that the government acted in good faith. This factor weighs in favor of the government.

V. CONCLUSION

The Court decides the ultimate issue of whether the government has sufficiently demonstrated excusable neglect by weighing its assessment of each of the four Pioneer factors. On balance, the Court concludes that the government has satisfied its burden. The government has articulated sufficient facts to establish that reasonable cause existed between January 14, 2022, and July 15, 2022 for the Court to extend its delayed notice authorization. Moreover, the Court is satisfied that the government acted in good faith.

Having considered the government's Motion for Extension of Delayed Notice Nunc Pro Tunc (Doc. No. 13) and Supplemental Brief (Doc. No. 17), the Court concludes that there is reasonable cause to believe that providing immediate notification of the Search Warrant would have an adverse result, as defined in 18 U.S.C. § 2705. Providing immediate notice to the subscriber or user of the Target Telephone would seriously jeopardize the ongoing investigation because such a disclosure would give that person an opportunity to destroy evidence, change patterns of behavior, notify confederates, and flee from prosecution. Finding good cause to extend the date by which the government shall serve notice and finding no prejudice to any party resulting from any delay in the government's seeking this order, any such delay is excused. Pursuant to 18 U.S.C. § 3103a(b)(3) and Federal Rule of Criminal Procedure 41(f)(3), the officer who executed the Search Warrant may delay notification to the customer or subscriber of the Target Telephone until July 15, 2022.

Should the government seek further delay of any required notice, it shall make further, timely application to this Court pursuant to 18 U.S.C. §§ 2705(a)(2)(A)-(E) and 3103a(b)-(c), demonstrating that notification may: (1) endanger the life or physical safety of a person; (2) cause prompt flight from prosecution, destruction of or tampering with evidence, or intimidation of potential witnesses; or (3) otherwise seriously jeopardize an ongoing investigation. Any such application must be submitted prior to July 15, 2022 and must include a detailed factual recitation as to the ongoing nature of the criminal investigation and the particular reasons why delayed notice is warranted under the statute governing such notice.

The Motion for Extension of Delayed Notice Nunc Pro Tunc (Doc. No. 13) is GRANTED, in part, until July 15, 2022.

SO ORDERED.

Robert M. Spector, United States Magistrate Judge