United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM OF DECISION RE: MOTION TO
CAMPBELL U.S. DISTRICT COURT JUDGE
superseding indictment charges Defendant Minh Hoang with
eleven counts of violating 18 U.S.C. § 1832, Theft of
Trade Secrets. (ECF No. 70.) He is accused of illegally
downloading trade secrets that belonged to his employer,
Becton, Dickinson, and Company (BD). As part of its
investigation, the United States executed four warrants. Mr.
Hoang now moves to suppress evidence uncovered through these
warrants. (ECF No. 104.)
first warrant was issued on September 14, 2015. It authorized
agents to search Mr. Hoang's home and, among other
things, seize any computer or computer storage devices
discovered. (ECF No. 107-1.) The second warrant, issued on
September 18, 2015, authorized agents to search these
computer storage devices for evidence of stolen trade
secrets. (ECF No. 107-2.) The third warrant was issued the
same day. Part I of that warrant directed Comcast Corporation
to give the United States all data it possessed from the
email account “firstname.lastname@example.org.” Part II of
the warrant authorized the United States to search this data
for evidence of stolen trade secrets. (ECF No. 107-3.)
Finally, on March 16, 2016, a warrant was issued requiring
that Google, Inc., turn over all email data for the email
account “email@example.com, ” and
authorizing the United States to search this data for
violations of trade secret laws. (ECF No. 107-4.)
First, Second, and Third Warrants
Hoang argues the evidence obtained from the first, second,
and third warrants should be suppressed because the
affidavits offered in support of the warrants improperly
relied on double hearsay.
warrants were each supported by an affidavit signed by FBI
Special Agent David Rawlings, who declared that “[t]he
information contained in this affidavit is based primarily on
information received from attorneys representing [BD] based
on an internal investigation by BD, on my personal knowledge
and limited investigation, and [on] information that I
received from other law enforcement agents and officers
assisting in this investigation.” (Affidavit in Support
of Warrant Application (“Rawlings Affidavit”)
¶ 2, ECF No. 107-1.)
information in the Rawlings Affidavit came from an
investigation by BD's officers. They passed the
information to BD's attorneys, and BD's attorneys
provided it to Special Agent Rawlings. Mr. Hoang claims
that, because of these layers of hearsay, the warrant was not
supported by probable cause.
is no rule against hearsay in warrant applications.
“This court has long held hearsay, and even multiple
layers thereof, ‘may support a finding of probable
cause for a search warrant.'” United States v.
Freerksen, 457 Fed.Appx. 765, 769 (10th Cir. 2012)
(quoting United States v. Mathis, 357 F.3d 1200,
1204 (10th Cir. 2004)). Instead, the question is whether the
hearsay is sufficiently reliable to allow a judge to
conclude, in view of the totality of the circumstances, that
there was probable cause to justify a search. See Cortez
v. McCauley, 478 F.3d 1108, 1118 n.10 (10th Cir. 2017).
In weighing whether information is reliable, courts consider,
among other things, whether the information comes from known
or anonymous sources, how the sources acquired their
information, and how detailed the information is. See,
e.g., United States v. Pulliam, 748 F.3d 967,
971 (10th Cir. 2014); United States v. Hendrix, 664
F.3d 1334, 1338-39 (10th Cir. 2011); United States v.
Danhauer, 229 F.3d 1002, 1005-06 (10th Cir. 2000).
BD's attorneys identified themselves and identified by
name the individuals involved in the internal investigation.
(Rawlings Affidavit ¶¶ 42-44, 70-72, 77, 78, 81,
83, 85.) BD provided a detailed account of why Mr.
Hoang's conduct made them suspicious and to what lengths
they went to investigate him. (Id. ¶¶
70-99.) And BD gave Special Agent Rawlings details about Mr.
Hoang's alleged thefts. (Id. at ¶¶
58-70, 93.) Cumulatively, this information was sufficiently
reliable to provide probable cause for the warrant.
the cases cited by Mr. Hoang are to the contrary. In
Cortez, a two-year-old claimed a man had touched her
sexually. The child's mother told a nurse what the child
had said, and the nurse told the police. The police arrested
the man before either the nurse or the police ever spoke to
the child. The Tenth Circuit held that the officers did not
have probable cause for the arrest. Cortez, 478 F.3d
at 1118. These facts are far different than the facts here.
The source of the information here-BD's officers and
attorneys-is much more reliable.
motion hearing, Mr. Hoang contended that Cortez, at
a minimum, required some level of corroboration of the facts
by the police. But the Cortez court explicitly
stated that, depending on the context, corroboration may not
be necessary. Id. at 1118 n.11. (“[W]e do not
suggest a per se rule that unsubstantiated double-hearsay
testimony can never give rise to probable cause. There, in
fact, may be situations in which a double-hearsay statement
involves individuals or circumstances of sufficient
trustworthiness to give rise to probable cause.”).
Hoang also cites to Ruttkamp v. De Los Reyes, No.
3:10-cv-392 (SRU), 2012 WL 3596064 (D. Conn. Aug. 20, 2012)
and Nieves v. New York City Police Department, No.
07 Civ. 5751 (SAS), 2010 WL 330305 (S.D.N.Y. May 18, 2010).
But in both of those cases, the police informants had no
personal connection to the alleged crimes and were several
steps removed from those with actual knowledge of what had
occurred. Here, BD's officers and attorneys were much
Hoang argues Special Agent Rawlings should not have relied on
the BD attorneys' hearsay because the events they
recounted were not recent enough: BD was aware Mr. Hoang was
downloading confidential material in June and July but did
not report it to the FBI until September. (Rawlings Affidavit
¶¶ 58-59.) While the court agrees that a delay in
reporting crimes may make the information less reliable
(see, e.g., United States v. Snow, 919 F.2d
1458, 1459-60 (10th Cir. 1990)), any delay here was
understandable given that BD decided to investigate Mr.
Hoang's conduct internally before informing the FBI.
Especially because Mr. Hoang's alleged misconduct was
ongoing-BD also accused him of downloading material in August
and September (Rawlings Affidavit ¶ 60(h))-the
information BD supplied to the FBI was not stale.
the court concludes Special Agent Rawlings's reliance on
hearsay did not affect the validity of the warrants.
Hoang is accused of violating 18 U.S.C. § 1832, which
Whoever, with intent to convert a trade secret, that is
related to a product or service used in or intended for use
in interstate or foreign commerce, to the economic benefit of
anyone other than the owner thereof, and intending or knowing
that the offense will, injure any owner of that trade secret,
(1) steals, or without authorization appropriates, takes,
carries away, or conceals, or by fraud, artifice, or
deception obtains such information;
(2) without authorization copies, duplicates, sketches,
draws, photographs, downloads, uploads, alters, destroys,
photocopies, replicates, transmits, delivers, sends, mails,
communicates, or conveys such information;
(3) receives, buys, or possesses such information, knowing
the same to have been stolen or appropriated, obtained, or
converted without authorization;
(4) attempts to commit any offense described in paragraphs
(1) through (3); or
(5) conspires with one or more other persons to commit any
offense described in paragraphs (1) through (3), and one or
more of such persons do any act to effect the object of the
conspiracy, shall, except as provided in subsection (b), be
fined under this title or imprisoned not more than 10 years,
Hoang argues that to secure a warrant, the United States was
required to show that it had probable cause for each element
of the crime. The United States responds that it need only
show that there was probable cause that the crime as a whole
was committed and states that the court need not undertake an
element-by-element analysis of the Rawlings Affidavit.
Tenth Circuit has recognized a split of authority on this
issue, but it has not resolved the question:
[W]e lack precedential decisions on the necessity of probable
cause for each element of a suspected crime. On that issue,
the circuits are divided. Compare Spiegel v.
Cortese, 196 F.3d 717, 724 n.1 (7th Cir. 2000) (stating
that probable cause is unnecessary on each element of a
crime), and Gasho v. United States, 39 F.3d 1420,
1428 (9th Cir. 1994) (“[A]n officer need not have
probable cause for every element of the offense.”),
with Williams v. Alexander, Ark., 772 F.3d 1307,
1312 (8th Cir. 2014) (“For probable cause to exist,
there must be probable cause for all elements of the
crime.”), and United States v. Joseph, 730
F.3d 336, 342 (3d Cir. 2013) (“To make an arrest based
on probable cause, the arresting officer must have probable
cause for each element of the offense.”). Neither our
court nor the Supreme Court has weighed in on this circuit
United States v. Argueta-Mejia, 615 Fed.Appx. 485,
489-90 (10th Cir. 2015).
Argueta-Mejia, the Tenth Circuit held only that it
was permissible-without deciding whether it was required-for
the district court to review each element in evaluating
probable cause. Id. The United States cites no case
law suggesting the Tenth Circuit or the Supreme Court has
resolved this issue in the four years since
Argueta-Mejia was decided.
court need not decide this issue because the United States
has demonstrated probable cause for each element.
Hoang asserts that the United States did not have probable
cause for four of the elements necessary to prove a violation
of the trade secrets law. When a warrant is challenged on its
face, the court looks within the four corners of the
affidavit to determine whether the warrant is supported by
probable cause. Whiteley v. Warden, Wyo. State
Penitentiary, 401 ...