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Hackers Underworld 2: Forbidden Knowledge
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LEGAL
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ALCOR3.TXT
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Ok folks, as I promised, here are the legal papers filed in the email
case since the original filing. Typos are most likely mine. Comments
are in [brackets], skipping the first few pages is recommened. Sorry it
took so long, I recieved copies of this stuff only yesterday.
---Keith Henson
KINKEL, RODIGER & SPRIGGS
BRUCE DISENHOUSE
3393 Fourteenth Street
Riverside, CAlifornia 92501
(714) 683-2410
GREINES, MARTIN, STEIN & RICHLAND
MARTIN STEIN
9601 Wilshire Boulevard, Suite 544
Beverly Hills, California 90210-5215
(213) 859-7811
Attorney for Defendants County of Riverside, Grover C. Trask, II, Curtis
R. Hinman, Raymond Carrillo, Robert Spitzer and John V. Mosley y
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
H. KEITH HENSON, et al.,
Plaintiffs,
vs.
Raymond Carrillo, et al.,
Defendants.
Case No. SA CV 90-021 JSL (RwRx)
NOTICE OF MOTION AND MOTION
TO DISMISS COMPLAINT FOR
DECLARATORY RELIEF AND
DAMAGES (Electronic
Communication Privacy Act of 1986;
18 U.S.C. Section 2701, et seq.) PURSUANT
TO RULE 12 (b), F.R.C.P.;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
THEREOF
Date: April 30, 1990
Time: 1:00 p.m.
Courtroom: No. 2
Trial Date: None set
TABLE OF CONTENTS
MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES
(ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986; U.S.C. Section
2701, et seq.) Page 3
MEMORANDUM OF POINTS AND AUTHORITIES page 5
INTRODUCTION AND STATEMENT OF RELEVANT FACTS page 5
LEGAL DISCUSSION page 7
I. THE COMPLAINT SHOULD BE DISMISSED AS TO ALL NAMED DEFENDANTS
BECAUSE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR RELIEF UNDER
THE ELECTRONIC COMMUNICATION PRIVACY ACT. page 7
II. EVEN IF THIS COURT WERE TO CONCLUDE THAT THE SEARCH WARRANT
WAS TECHNICALLY DEFICIENT, STILL DEFENDANTS ARE PROTECTED FROM
SUIT BY THE DOCTRINE OF GOD-FAITH RELIANCE. THUS THE COMPLAINT
SHOULD BE ORDERED DISMISS ON THIS ADDITIONAL GROUND. page 11
CONCLUSION page 13
TABLE OF AUTHORITIES
Cases
Burrows v. Superior Court page 10
13 Cal.3d 238 (1974)
Harlow v. Fitzgerald, page 12
457 U.S. 800 (1982)
People v. Dumas, page 10
Cal.3d 871 (1973)
Robison v. Via, page 12
821 f.2d 913 (2d Cir. 1987)
Tomer v. Gates page 12
811 f.2d 1240 (9th Cir. 1987)
U.S. v. McLaughlin,
851 f.2d 283 (9th Cir. 1986)
U.S. v. Michaelian,
803 f.2d 1042 (9th Cir. 1986)
U.S. v. Spilotro
800 f.2d 959 (9th Cir. 1986)
Statues
18 U.S.C. Section 2701
18 U.S.C. Section 2707
Constitutions
Unites state Constitution, Fourth Amendment
Rules
Federal Rules of Civil Procedure, Rule 12(b)
United States District Court for the
Central District of California,
Local Rule 7.6
Local Rule 7.9
Misc.
1986 U.S Cond Cong Adm Nes, Ann.
TO PLAINTIFFS H. KEITH HENSON, ET AL., AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on April 30, 1990 at 1:00 p.m. or as soon
thereafter as the matter may be heard in Courtroom 2 of the Honorable J.
Spencer Letts, Judge of the United states district Court for the Central
District of California, 751 Santa Ana Boulevard, Santa Ana, California
92701-4599, defendants County of Riverside, Grover C Trask, II, Curtis R.
Hinman, Raymond Carrillo, Robert Spitzer, and John V. Mosley will bring on
for hearing the accompanying Motion to Dismiss complaint for Declaratory
Relief, and Damages (Electronic Communication Privacy Act of 1986; 18
U.S.C. Section 2701, et seq.).
Defendants' motion will be brought pursuant to Rule 12(b) of the
Federal Rules of Civil Procedure and will be based on this Notice of
Motion and Motion, the attached memorandum of ports and authorities, and
on such other and further documentation evidence and argument as may be
presented in support of this motion.
PLEASE TAKE FURTHER NOTICE that under Local Rule 7.6 of the United
States District Court for the Central District of California, a party
opposing a motion shall, not later than 14 days before the date set for
hearing of the motion, serve upon all parties and file with the clerk of
the court either (a) a brief, but complete memorandum containing a
statement of all reasons in opposition to said motion, and the point and
authorities upon which the opposition party will rely, or (b) a written
statement that he will not oppose the motion. Under Local Rule 7.9,
failure to file any required papers may be deemed by the court consent to
the granting of the motion.
Dated: March 27, 1990.
Respectfully submitted,
[boilerplate]
[signed] Martin Stein
[page 3]
MOTION TO DISMISS COMPLAINT FOR DECLARATORY RELIEF AND DAMAGES
(ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986; 18 U.S.C. Section
2701, et seq.)
Pursuant to the provisions of rule 12(b) of the Federal Rules of
Civil Procedure, defendants [list], hereby move to dismiss the Complaint
for declaratory relief and damages on file herein on the following
separate grounds:
1. Plaintiffs have failed to allege sufficient facts to state a a
claim for relief against the named defendants herein in that the
allegations of the Complaint and attached documentation establish as a
matter of law that defendant did not violate the provision of the ECPA in
execution a facially valid search warrant.
2. Even assuming that a technical violation of the ECPA has
properly been alleged by the plaintiffs in the instant case, the named
defendants herein are entitled to dismissal on the basis of their
good-faith reliance on the terms of a facially valid search warrant,
pursuant to the provisions of 18 U.S.C. section 2707(d)(1).
WHEREFORE, defendants [list] and each of the pray as follows:
1. That each of their motions to dismiss the Complaint be granted
without leave to amend;
2. The the Complaint and each claim for relief alleged therein be
ordered dismissed as against each of these defendants;
3. That plaintiffs be ordered to take nothing from defendants;
4. That defendants be awarded judgement for their cost of suit
incurred herein;
5. That this court grant such other and further relief as it deems
just and proper.
Dated: March 27, 1990
[boiler plate/signed Martin Stein]
[page 5]
_MEMORANDUM OF POINTS AND AUTHORITIES_
_INTRODUCTION AND STATEMENT OF RELEVANT FACTS_
Plaintiffs seek damages and injunctive relief based on the purported
acts of the named defendants herein in executing a facially valid search
warrant. The assert that in executing the search warrant, defendants
violated the provisions of the ECPA. More specifically, plaintiffs
allege that at some unspecified date prior to January 12, 1988,
defendants procured from the Riverside County Superior Court a search
warrant which authorized, in general, a search of the facilities of
Alcor. Plaintiffs assert, however, that the search warrant did not
purport to reach, nor was it intended to reach any of plaintiffs E_Mail.
Complaint [paragraph] 5.
[footnote--Plaintiffs assert that E-Mail was the facilitation, sending
and receipt of electronic mail via computerized modems. Complaint, para
4]
Plaintiffs assert that pursuant to the search warrant, on January 12,
1988, defendants searched Alcor's premises and removed a variety of items
including the electronic media containing plaintiffs E-Mail. Complaint
[paragraph] 6. Plaintiffs conclude by alleging that notwithstanding that
defendants and each of the were informed that they had taken, along with
materials described the warrant, E-Mail belonging to plaintiffs, that
defendants herein knowingl