1 IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF WASHINGTON 3 4 STATE OF OREGON, ) ) 5 Plaintiff, ) ) 6 vs. ) No. C940322CR ) 7 RANDAL LEE SCHWARTZ, ) ) 8 Defendant. ) Volume 3 9 10 11 TRANSCRIPT OF PRETRIAL PROCEEDINGS 12 13 BE IT REMEMBERED THAT on the 15th 14 day of June 1995, the above-entitled matter came on 15 for Hearing before the HONORABLE ALAN C. BONEBRAKE, 16 a Circuit Court Judge. 17 18 APPEARANCES 19 Thomas J. Tintera Washington County Deputy District Attorney 20 Representing the State of Oregon 21 Mark Sussman Attorney at Law 22 Representing the Defendant 23 24 25 253 1 AFTERNOON SESSION 2 BEGINNING AT 4:00 P.M. 3 JUNE 14, 1995 4 5 THE COURT: Good afternoon. 6 MR. SUSSMAN: Afternoon, Your Honor. 7 MR. TINTERA: This is the time set 8 for continuation in the omnibus hearing in the case 9 of State of Oregon versus Randal Lee Schwartz, 10 C940322. Defendant is present, not in custody, 11 appearing with counsel. State's prepared to go 12 forward, Your Honor. 13 THE COURT: Are you prepared? 14 MR. SUSSMAN: Your Honor, we are 15 prepared to proceed. I would advise the Court that 16 we had set this time for us to place the telephone 17 conference call to the expert witness that we had 18 lined up to testify, both with respect to the 19 hearing on the motion to controvert and then to 20 deal with the motion regarding the production of 21 documents and materials from Intel. 22 In reviewing the testimony that was 23 elicited during the course of the hearings from 24 Mr. Cower and Mr. Morrissey, the witness' testimony 25 that we had contemplated inquiring would be 254 1 redundant and I will not call him for that purpose. 2 Mr. Woodard and I have been on the 3 phone this morning and have spoken prior to 4 appearing here today and we have gone a long way 5 towards clearing up the issues in that particular 6 motion. Mr. Woodard has provided me with a pack of 7 documents which include the materials that we 8 thought had been left out of the gate program log 9 runs that were referred to in my motion and the 10 affidavits attached. 11 I've been informed about certain 12 materials that -- or data that we have requested 13 which doesn't exist anymore, and then certain items 14 that we requested, Mr. Woodard is checking to see 15 if it still exists and would disclose it if it 16 does. 17 And then as far as the backup tapes 18 that Mr. Morrissey referred to, which are in 19 existence, it does appear to contain data which we 20 both agree is information which we are not 21 interested in, and it's proprietary, sensitive 22 information which has no relevance. And we then 23 would have a practical or technical problem of how 24 to make that available without that particular 25 information in it and we have agreed that perhaps 255 1 we can have our expert consult with Mr. Cower and 2 figure out how to do that. 3 THE COURT: I appreciate the 4 cooperation that everyone is showing in this case, 5 all three sides, because it is -- it does involve 6 unusual factual scenario and privileged, 7 confidential, proprietary information. And if I 8 may be of assistance or if at any time Intel in 9 particular believes that an appropriate form of 10 protective order is necessary, sounds to me like 11 you're well on your way to working out the details 12 of any of that, so -- 13 MR. SUSSMAN: Yes. In fact, we did 14 discuss that with respect to documents provided 15 today. Mr. Woodard brought the material even 16 before they had a complete opportunity to make sure 17 that there -- that it contained nothing -- 18 MR. WOODARD: Doesn't contain 19 password logs, yes. 20 MR. SUSSMAN: Nothing that would 21 contain password logs that was subject to the 22 protective order. And we have worked out an 23 understanding that -- I have assured him at this 24 point that the documents will be provided only to 25 our expert and then copied and maintained in my 256 1 office for my use and the assistance of helping me 2 prepare the case. And in the interim, if it is 3 discovered that there is material that is subject 4 to that protective order, Mr. Woodard would let me 5 know and we will, between us, reach a -- prepare 6 the appropriate protective agreement so that it is 7 not disseminated, and we could submit that to the 8 Court. 9 THE COURT: I appreciate the high 10 level of professionalism demonstrated by all 11 counsel here. It's rather unique in a criminal 12 case, and I'm saying that and smiling as I say 13 that, but I genuinely mean it. It makes our 14 ultimate task of getting to the truth of the matter 15 much simpler when we don't have to quibble over 16 these sorts of details. I do appreciate that. 17 It's exactly the way these procedures ought to go 18 and ought to work. So I congratulate you on your 19 efforts and the accord that you have reached, and I 20 certainly appreciate it and we all do. 21 Are you ready for argument then? 22 MR. SUSSMAN: We are. Since it's my 23 motion, the burden is on the defense. 24 THE COURT: I did review the statute 25 again and read all the sections, and I do see the 257 1 burden is by a preponderance of the evidence. And 2 since there was a search warrant, you're correct, 3 it is on the defense. 4 MR. SUSSMAN: I would like to deal 5 with one threshold issue, which was raised by 6 Mr. Tintera's objections to the scope of the 7 inquiry and what may be considered and whether that 8 was -- how that was framed by the affidavit. I 9 must admit when that issue was raised late Tuesday 10 afternoon and I was not fully prepared to respond. 11 I would submit to the Court that the 12 purpose of the affidavit under ORS 133.693 is to 13 set forth a substantial basis for questioning the 14 good faith, accuracy and truthfulness of the 15 affidavit. Oregon law, as set out under that 16 statute, is different from federal law under 17 Delaware v. Franks in terms of making the threshold 18 showing in the affidavit which it must then be 19 established before even a hearing is allowed. 20 What this allows you to do is in the 21 affidavit, as I read the statute, it allows you to 22 submit the affidavit which presents a substantial 23 basis for challenging the search warrant. And then 24 Subsection 1, which refers to Subsection 2, allows 25 that matter, once the threshold showing has been 258 1 made, to be fully explored through the 2 cross-examination and evidence offered at the 3 hearing. 4 Now, I tried to see if there was any 5 case law that specifically addressed the issue 6 either way in terms of arguing the case law, and 7 the case law on that issue is sparse, but I think 8 the case that most directly addresses that issue is 9 State v. Hermach, 53 Or App 412, and at Page 419 of 10 that decision, the Court stated that -- in 11 discussing the procedures and the showing that 12 needs to be made for a motion to controvert, 13 stated, "First, if by failure to supply enough 14 information, the magistrate's inference drawing 15 process is disrupted, a remedy is required. ORS 16 133.693(2) directs that a defendant may not 17 question the good faith of the affiant presenting 18 evidence to the magistrate, unless the defendant 19 first demonstrates a 'substantial basis for 20 questioning such good faith.'" 21 And the Court went on to say in the 22 critical point, "We hold that where the defendant 23 meets the threshold burden and introduces evidence 24 showing the affiant failed to make a full 25 disclosure of information made known to him, the 259 1 entire supporting affidavit should be re-examined 2 in light of the controverting statements given at 3 the hearing." 4 In looking at the other cases 5 addressing the statute that we found, McManus is 6 cited in that case; State v. Hitt, 305 Oregon 458; 7 State v. Stockton, 120 Oregon Appeals at 111, and 8 State v. Diaz, 29 Or App 523. All of the cases 9 talked in terms of this threshold showing of making 10 substantial showing, substantial basis for 11 questioning the good faith, accuracy or 12 truthfulness of the affidavit, and then discussing 13 it in terms of evidence produced at the hearing. 14 Did not limit the evidence. There was no 15 indication the evidence was limited by specifically 16 what was contained in terms of the affidavit. 17 So my -- so I submit to the Court 18 although there is no authority that specifically in 19 Oregon says one way or the other, the implication 20 of these cases is that if we have made that 21 threshold showing in the affidavit, then we may 22 fully inquire at the hearing which follows and 23 whatever is developed in that hearing may be 24 considered by the Court in the motion to 25 controvert. 260 1 THE COURT: I'm going to interrupt, 2 as I have a habit of doing, and say that argument 3 is contrary to what my practice has been in the 4 past, and the justification for not permitting just 5 an open-ended examination of witnesses is that this 6 becomes nothing more than deposition-taking if we 7 are not bound by some rules or limitation. 8 So my practice in the past has been 9 to see what issues have been raised by substantial 10 evidence in the affidavit and then limit my inquiry 11 to those. That doesn't mean in appropriate cases I 12 wouldn't consider a suggestion that the affidavit 13 be amended or that the inquiry be amended. I know 14 there will be argument by the State on that. 15 My belief is that the practice in 16 Oregon is fairly uniform, and that is that the 17 issues that may be considered by the Court in the 18 motion to controvert are those and only those 19 raised in the affidavit. 20 MR. SUSSMAN: Recognizing you have 21 already ruled that way, and I don't necessarily 22 expect you to reverse that, I -- 23 THE COURT: I'm always willing to 24 consider new argument, but I'm telling you how I 25 have ruled in the past. 261 1 MR. SUSSMAN: Sure. I was hopeful 2 that perhaps in this discussion, we might take 3 another look at that issue in terms of the 4 materials that -- some of the questions that were 5 raised were questions that weren't raised as far as 6 specific facts which -- or issues that I think, and 7 I submit to the Court, were either inaccurate as 8 stated in the affidavit or omitted and, therefore, 9 left -- allowed inferences that would not have 10 otherwise been supported by the facts to establish 11 probable cause or might have contradicted finding 12 probable cause. 13 A couple areas that I think 14 specifically where that came up were twofold: One 15 was I think just the specific question about 16 whether or not it was -- the reference to -- excuse 17 me. When Detective Lilley stated he had been told 18 that Mr. Schwartz had committed a violation of the 19 specific statute ORS 164.377, that was not -- these 20 were not the words, as contradicted by the 21 witnesses. 22 And although albeit a small detail, 23 it does, along with the subsequent detail which was 24 contradicted and which Detective Lilley was quite 25 firm about where he testified that he was informed 262 1 that Ruby.ORA.com was a program, and the witness 2 was equally firm in stating that he informed 3 Detective Lilley that it was a machine. That 4 indicates -- raises questions under State v. -- the 5 proposition of State v. Miller, which if we can 6 demonstrate that the affiant made factual errors 7 and that the objective belief that the facts in the 8 affidavit were true, were unreasonable, then you 9 may question the accuracy of the entire affidavit 10 and look at the entire affidavit in light of those 11 matters. 12 The other area that there was a 13 question about dealt with the extent to which there 14 was a disclosure of Detective Lazenby's training 15 and experience, and there was some objection to 16 that. There was some evidence that was presented 17 in the course of the hearings, both in September of 18 last year and these last few days, about the extent 19 of Detective Lazenby's training and experience. 20 And that goes to the number of facts which we think 21 were omitted from the affidavit, which I submit are 22 within the larger issue raised about facts omitted 23 from the affidavit which raised questions which 24 were intended to show that there was not the 25 connection between the activity discovered at Intel 263 1 and the likelihood of finding evidence of crime at 2 Mr. Schwartz's home. 3 That was kind of a broadly stated -- 4 was the issue raised in the affidavits, and I would 5 suggest that omission is one piece, along with 6 several others, which raise -- I think controvert 7 the affidavit. 8 Let me go through some of the others 9 that I think the evidence raised where the affiant 10 either was contradicted or would know important 11 information was omitted which would bear on the 12 issue of probable cause. 13 In reviewing my notes of some of 14 those significant features, I note, for instance, 15 that Detective Lilley -- the testimony was 16 Detective Lilley had been told that Randal Schwartz 17 had not removed the Crack program or the lists of 18 crack passwords from the system, from his 19 directories in the system under Mr. Morrissey's 20 control, and that was true as of the morning the 21 search warrant affidavit was prepared. 22 That's a significant omission, 23 because if presented to the magistrate, it could 24 suggest that in combination with the fact that 25 Mr. Schwartz ran the program under his own user ID 264 1 name out in the open, that this was not in 2 connection with surreptitious activity outside of 3 Intel. 4 Number two, along those lines, I 5 believe Mr. Morrissey testified that the programs 6 that Mr. Schwartz had been running, Crack program, 7 the Gate program were all done on systems internal 8 to Intel. And I believe they informed Detective 9 Lilley of that fact, which was omitted from the 10 affidavit. 11 The evidence produced indicated that 12 neither Mr. Morrissey nor Mr. Cower cite or had 13 specific facts to indicate that Mr. Schwartz had 14 transferred any material from the crack password 15 file or any other Intel files to his laptop 16 computer. 17 Mr. Morrissey did testify that he 18 did not believe that he had told Detective Lilley 19 that it was -- it might not -- there might not be a 20 feasible way of showing that, but he did tell him 21 that there -- but he did indicate there was no 22 sufficient facts or indication showing that he had 23 made a transfer. 24 And Mr. Cower specifically testified 25 that not that he said it was -- that Mr. Schwartz 265 1 would have done this, but in discussing that, the 2 matter of whether or not transfer, copying of 3 materials from the laptop was done, simply said 4 that that was one of the scenarios or one of the 5 possibilities that was certainly -- that could have 6 occurred, which was more equivocal and less -- and 7 is more speculative than what is stated in the 8 affidavit. 9 I would submit that was a 10 significant discrepancy between what the witness 11 said he told Detective Lilley and how that was 12 characterized in the affidavit. 13 Mr. -- In the affidavit where it 14 indicates that Mr. Morrissey informed Detective 15 Lilley that Randal Schwartz was security conscious 16 and would know and would be able to make his 17 passwords hard to crack, Mr. Morrissey also 18 testified and informed Detective Lilley that Randal 19 Schwartz was sufficiently sophisticated or savvy 20 that he would now how to cover his tracks, and that 21 was an omission that was significant because if 22 that had been included, it is the kind of thing 23 which can contradict, or at least in the equation 24 of whether there is probable cause to believe that 25 the files had been transferred and would be found 266 1 and that evidence would be found at Mr. Schwartz's 2 home, it would support the inference that because 3 this was done out in the open, that nothing had 4 been transferred. 5 Mr. Morrissey, I believe, testified 6 that -- not only that Randal Schwartz's authorized 7 password had not yet been removed from Brillig at 8 the time this was done, but that he had informed 9 Detective Lilley that the authorized password had 10 not been removed. That is a significant omission, 11 we submit, because the way the description of 12 Mr. Schwartz's use of Brillig was characterized, it 13 suggested that he had no authorized password access 14 at all and didn't even raise the question that 15 there had been an authorized password which he was 16 using at the time, and which could again, in 17 combination with the information in the affidavit, 18 the programs being run in the open, counterbalance 19 the probable cause equation. 20 Mr. Morrissey testified, as I 21 recall, I believe, from my notes, he told Detective 22 Lilley that he did not know where Randal Schwartz 23 worked from outside of Intel, that he surmised or 24 assumed it might have been the home office. But my 25 notes indicate that the testimony of what he told 267 1 Detective Lilley was he did not know where 2 Mr. Schwartz worked, which would again be different 3 than what was suggested or the inference raised in 4 the affidavit that Mr. Schwartz would and did work 5 at his home. 6 Detective Lilley did testify that he 7 was told about the findings of John Kent, that in 8 checking with Mr. Schwartz's directories or files 9 on Brillig, they had nothing that were illegal or 10 stolen files were found, and that information was 11 also omitted from the affidavit. 12 Finally, then, with respect to the 13 issue of Detective Lazenby's training and 14 experience and the omission and the details of what 15 that was particularly compared in the magistrate's 16 experience to other affidavits, I think it raises 17 questions about the good faith of the affiant in 18 the sense that it was trying to create an 19 impression that Detective Lazenby had more 20 experience and more knowledge in the area of 21 investigating computer crimes than he really did. 22 And the evidence is that while he did take a course 23 on investigating the computer crimes, his entire 24 practical experience prior to this had been limited 25 to seizing computers and looking at matters 268 1 involving drug records that had been on computers. 2 The inclusion of that kind of 3 information or the omission of that information was 4 significant because it lends greater credibility to 5 the training and experience of Detective Lazenby 6 and which whose statements became an important 7 lynch pin for making the connection for looking for 8 certain kinds of specific items that -- in 9 Mr. Schwartz's home which otherwise would not have 10 been appropriate and supported by the affidavit. 11 I think given those facts, those 12 contributions, those omissions that have been 13 elicited during the testimony of the hearing, we 14 believe that the affidavit has been controverted, 15 and even if part -- if the Court finds and if the 16 Court's recollection and understanding of the 17 testimony is even partially in agreement with that 18 recitation of the evidence, if you find that that 19 is the case, then you must look at the entire 20 affidavit afresh and determine whether or not it 21 states probable cause in light of that. And the 22 Court has already heard the arguments on my -- we 23 think it didn't contain probable cause before and 24 we certainly would submit when you eliminate these 25 matters or take the omissions into consideration, 269 1 that the probable cause is not stated. 2 THE COURT: Thank you. 3 MR. TINTERA: I'll be fairly brief, 4 Judge. 5 It's my position that the defendant 6 has not even reached the threshold of raising a 7 substantial basis of flushing the truthfulness, 8 accuracy or good faith of Detective Lilley. That's 9 a threshold matter that has not been reached by the 10 defendant. 11 It was my understanding from the 12 Court's ruling on Tuesday that you were going to 13 defer that until you heard the affidavit and I'm 14 re-raising it now. I don't think they came close 15 to raising a substantial basis to question the 16 truthfulness, accuracy or good faith of Detective 17 Lilley in his affidavit. 18 As far as some of the specific 19 points made by counsel, my recollection of 20 Mr. Morrissey's testimony was that although his 21 opinion was that Randal could have concealed his 22 activity, he did not tell that to Detective Lilley, 23 so that is not accurate. 24 The first -- whether the program had 25 been removed or not is not material. The question 270 1 is whether information from the Supercomputer 2 Division files had been removed. That's what they 3 were searching for. Whether the program was still 4 running or not is immaterial to the magistrate to 5 the determination of probable cause as to had they 6 shown it's more likely than not that the 7 information based on the laptop computer and where 8 this individual has business and works off campus 9 has established that it's more likely than not that 10 that information would have been transported, 11 especially in light of the fact that it was his, 12 Mr. Schwartz's work habits to connect that laptop 13 into the Intel computer system. And with 14 Mr. Cower's testimony through the affidavit that 15 that was a way that a person could breach Intel 16 security and transport things in and out without 17 raising a security alarm. 18 He characterizes that Schwartz 19 had -- Mr. Schwartz had a valid or authorized 20 password on the Brillig system. Mr. Morrissey 21 didn't say that. He said he had a password, but 22 that it was not an authorized password. He was not 23 authorized to use the Brillig computer. He had 24 been terminated from the Supercomputer Division, 25 which the Brillig computer is a part of, so I think 271 1 it is a misrepresentation to the Court to say that 2 he was authorized to use that computer, because the 3 statements in the affidavit was that he was not, 4 the statements from the witness stand by both 5 Mr. Cower and Mr. Morrissey that he was not an 6 authorized user. 7 THE COURT: He had been, though, 8 hadn't he? He had been authorized. 9 MR. TINTERA: At one point in time, 10 yes. 11 THE COURT: The testimony was, 12 apparently through oversight, his password had not 13 been omitted. 14 MR. TINTERA: But I think you have 15 to make a distinction as to whether, as the analogy 16 has been made by other people to me, if you allow 17 your neighbor to come in and feed your cat and 18 goldfish while you're on vacation and give them a 19 key to do that, and then when you come back and you 20 happen -- you say, "You don't need to do that 21 anymore," and they keep the key and come in and do 22 something, that -- they have the key. Okay, they 23 are authorized to have the key. They're not 24 authorized to use it. That's the distinction that 25 I make. They made an oversight and left his 272 1 password there, but he was not authorized to use 2 it. 3 THE COURT: What you're suggesting 4 then, correct me if I am wrong, is that had there 5 been a complete disclosure, it wouldn't have 6 affected the probable cause in the affidavit 7 because had there been a complete disclosure, 8 Detective Lilley would have said that he had at one 9 time been authorized, he was terminated from that 10 program, he was no longer authorized, but through 11 some oversight, the password still gave him access. 12 MR. TINTERA: Yes. What I'm saying 13 is the information that is in the affidavit is 14 accurate. That there could have been the full 15 history of his use of that particular machine and 16 that was not put in. And I will give -- 17 THE COURT: One thing I'm sensitive 18 to, I have, over the years, become sensitive to, is 19 the length of search warrant affidavits and the 20 necessity that the affiant, typically police 21 officers have of trying to in some fashion 22 summarize what the evidence is and put it in a 23 fashion that's understandable. In doing that, it's 24 necessary for them to paraphrase and to again 25 summarize what they have been told and try to do it 273 1 hopefully in the most accurate fashion that they 2 can, yet not relate everything that every person 3 has told them, because when they do that, the past 4 becomes so gray that it's nearly impossible for the 5 magistrate to sift through all the facts and try to 6 determine what is relevant to probable cause and 7 what isn't. So they do, I'm aware, try to boil it 8 down, so to speak. Nevertheless, the affidavits 9 are usually quite lengthy. Apparently that's what 10 was done in this case. 11 MR. TINTERA: I find no significance 12 in the fact that no illegal files were found on 13 Brillig, that that was not included in the 14 affidavit. I suppose Intel could have checked all 15 1200 computers on the Hawthorn Farms campus and put 16 in there "and there were no illegal files from 17 Mr. Schwartz found on any of those 1200 particular 18 computers." How is that possibly helpful to the 19 magistrate? 20 The fact of the matter is what we're 21 looking at is the transportation of what was an 22 illegally copied file, the Supercomputer Division 23 file off campus, and those passwords were being 24 cracked by Mr. Schwartz. Whether it's in the open 25 or not, I submit to the Court, has no -- would not 274 1 be relevant to the magistrate at all. The fact 2 that he was caught doing it speaks for itself, but 3 the fact that there is no illegal files on Brillig 4 is just a non-issue, in my mind. 5 My major point is this: As I look 6 at what they provide and what they've done and I go 7 back to a common sense reading of what is in that 8 affidavit, I see, frankly, two misstatements. One 9 is whether Mr. Morrissey stated that there was a 10 violation of the ORS 164.377, and whether -- and I 11 also see the statement on Page 2 that Mr. Schwartz 12 has told them that Mr. Schwartz often works out of 13 his home and in offices. Mr. Morrissey says he 14 didn't say that. Then Mr. Lilley paraphrased that 15 supposition that later came up in a conversation 16 with Mr. Morrissey. 17 I submit to the Court that that does 18 not destroy the good faith of Detective Lilley. 19 That does not create a material inaccuracy, and it 20 does not show that he is in any way trying to 21 mislead or be untruthful to the magistrate. 22 THE COURT: One other area that 23 maybe you could address, I noted and I tried to 24 highlight areas during the testimony that in my 25 mind might give rise to a material -- substantial 275 1 basis for questioning, not suggesting that it does, 2 but those points that seem to show some form of 3 inaccuracy or omission, and it's the one where -- I 4 believe it was the testimony of Mark Morrissey, 5 that he, in fact, told Detective Lilley that the 6 defendant was sophisticated enough to have avoided 7 detection had he wanted to, and that wasn't placed 8 in the affidavit. Do you wish to address that? 9 MR. TINTERA: I must have heard that 10 testimony differently. Is that from Your Honor's 11 notes? 12 THE COURT: It is. 13 MR. TINTERA: I'll assume that was 14 the statement. My notes are not as complete as 15 Your Honor's. 16 THE COURT: I wrote down here that 17 it's possible then, an inference could be drawn, 18 and this really is -- Mr. Sussman argued on this 19 point, that there was no criminal intent or -- 20 well, I wrote down several things here. 21 Anyway, that's a point here. 22 Mr. Morrissey said he told Detective Lilley that. 23 Detective Lilley didn't put that in the affidavit. 24 That could bear on whether or not this conduct was 25 done unlawfully at all, whether or not there was a 276 1 crime. 2 MR. TINTERA: The crime was 3 committed, Judge, one aspect of the crime was 4 committed when he unlawfully entered the 5 Supercomputer Division. That is stated in the 6 affidavit. A second crime was committed when he 7 copied the Supercomputer Division password file. 8 That is stated in the affidavit. 9 Just because Mr. Schwartz is 10 arrogant enough to run this in the open is not 11 surprising to me, based on his computer knowledge. 12 The fact that -- with those two crimes already 13 having been committed in the affidavit, is that 14 misleading the magistrate to put in there that if 15 he wanted to, he could have disguised himself? 16 There is people that go into the 17 7-Eleven and if they wanted to, they could disguise 18 themselves and they don't. But is that -- 19 Detective Lilley was aware of the significance of 20 that, if he was, is that the type of thing that 21 should be in there? My mind, no. 22 The fact of the matter, the crimes 23 have already been committed and they are entitled 24 to search for evidence of those particular crimes 25 in a place where they believe it is reasonable to 277 1 find them at his home or -- and/or his businesses. 2 That's the only thing, that's the only way I look 3 at that, that the crimes had already been 4 established. 5 THE COURT: Mr. Sussman. 6 MR. SUSSMAN: Your Honor, I think 7 the key point there is it's not sufficient that the 8 affidavit may have stated -- even if I accept 9 Mr. Tintera's' argument that it stated that there 10 was a crime stated in the affidavit by getting 11 access to a machine or transferring the file. 12 For the search warrant to be valid 13 and the warrant to be valid, the issue is, did it 14 state the probable cause to believe that evidence 15 of the crime would be found in the place sought to 16 be searched? And by leaving that information out, 17 that contradicts the inference that the affidavit 18 seeks to draw. 19 THE COURT: Well, it could. 20 MR. SUSSMAN: It certainly could. 21 THE COURT: Not necessarily so. It 22 dawns on me when the magistrate reads these, it's 23 not like a motion for judgment of acquittal or 24 motion for directed verdict or to dismiss in a 25 civil case where you draw all possible inferences. 278 1 I think a magistrate reading an affidavit for a 2 search warrant probably is charged with looking at 3 all possible inferences and using it in some 4 reasonable basis for determining what reasonable 5 inferences should be drawn. 6 And when I heard this testimony, I 7 was trying to -- my notes are not very good, I 8 don't write well and I write fast, but some of the 9 things that Mr. Tintera said are other inferences 10 that might be drawn as well; that is, an inference 11 might be drawn from that evidence, that is that the 12 defendant was skilled enough and sophisticated 13 enough, he could have avoided detection had he 14 wanted to. 15 One inference that might be drawn is 16 that he, therefore, was not intending to commit any 17 crime. May have thought he had a legitimate right 18 to access the computer. Another inference that 19 might be drawn, it is frequently drawn with 20 criminal defendants, is reasonable in many cases, 21 I'm not suggesting that I'm making this finding on 22 this defendant, but it is an inference that could 23 be drawn, is that he thought he could get away with 24 it. "Arrogance" is a good word for that. It's not 25 uncommon. 279 1 You don't have to be involved in the 2 criminal justice business long and you find that 3 there are a lot of people like that that go through 4 the system, either arrogant or ignorant. Robbers 5 that don't use masks, burglars that don't wear 6 gloves. Forgers that forge their own names. They 7 just do it. It happens all the time. 8 So then the issue is how much 9 relevance is there to -- if this had been in the 10 affidavit, how much relevance, what weight would a 11 magistrate reasonably have given to that? It would 12 have caused a question to be raised in his mind, 13 but -- and as you would suggest, I suppose along 14 with the other questions, possibly then the 15 magistrate might have, you would argue, said no, 16 there is not probable cause to issue a warrant in 17 this case, but there certainly are other inferences 18 that could be drawn just as reasonably as one that 19 he didn't have criminal intent. 20 MR. SUSSMAN: Let me break down my 21 response to you in two ways. First the issue is, 22 is this a material omission? That, because it is 23 omitted, then reflects on the legal analysis of the 24 good faith of the affiant. And the legal standard 25 isn't so much -- we don't have to sit here, and I'm 280 1 not sitting here arguing that Detective Lilley was 2 acting out of bad faith, out of some evil motive to 3 get Mr. Schwartz. I don't think that really is the 4 inquiry or that's what we have to be arguing. 5 The issue of good faith, as the 6 cases cited in my memorandum, State v. Carter-Brand 7 and State v. Hermach, if you look at an omission of 8 facts which are material and the omission could 9 have misled the magistrate into drawing different 10 conclusions than might have been drawn, if the fact 11 pattern would have been different, that omission is 12 material enough to raise questions about the good 13 faith of the affidavit. 14 Now, the next step is, if we accept 15 that, what do we make of that? Does that change 16 your assessment to whether or not the affidavit 17 states probable cause? And the discussion -- 18 THE COURT: Here you get to the 19 point that I was making that -- 20 MR. SUSSMAN: Right. That's getting 21 to the second part of the analysis, which is, does 22 it change the probable cause analysis? And once 23 again, revisiting that, the argument made the other 24 day briefly on that is in Carter-Brand, the Court 25 said if the inference that the affiant seeks to 281 1 draw is merely one possibility of many, but it 2 doesn't mean -- show that it is more likely than 3 not the one which shows that evidence of the crime 4 is to be found in that particular location, then 5 the inference may be valid, but it is not probable 6 cause. But that's the argument that goes to the 7 question of if you include that, does the affidavit 8 fail on its failure to state probable cause? 9 THE COURT: Where it's one of 10 omission, then you add it in and said, had the 11 magistrate known that, does it detract from the 12 rest of the information? 13 MR. SUSSMAN: Sure. That's the only 14 addition that we are allowed to make in terms of 15 the significant omission of facts that were left 16 out that could have affected that equation. The 17 State can't ask you to add all the testimony that 18 additionally could have been added to show that 19 there was other evidence of probable cause. 20 THE COURT: I'm wondering -- all 21 right. I'm wondering, in reading the affidavit, 22 the magistrate, when you read of the defendant's 23 experience with Intel and his job and whatever, if 24 the magistrate wouldn't -- couldn't have drawn the 25 same inference that you suggest anyway, that is 282 1 that he was experienced in computers and likely 2 could have avoided detection had he wanted to. 3 Doesn't say that. The witness said he told Lilley 4 that, but it's possible the magistrate reading this 5 couldn't draw that inference anyway. 6 Go ahead. That's a thought I had. 7 MR. SUSSMAN: What I wanted to 8 respond to was basically, which is the first -- 9 just to clarify how I saw the significance of the 10 analysis for determining whether or not that 11 omission was significant, and then if the Court 12 finds that was a significant omission, then the 13 second matter you raised, I think, goes to the 14 question of the probable cause analysis. 15 THE COURT: Well, as with any -- I 16 know you've asked for, and appropriately so, 17 finding of fact and conclusion of law in the 18 motions that you filed. I don't take that lightly, 19 but here is how I do it when I have motions to 20 suppress and controvert. 21 First of all, it's a motion to 22 suppress the evidence. The only facts are the 23 affidavit, that's the facts. Then we apply the 24 law. We have a motion to controvert in the 25 testimony in -- where there are differences in 283 1 testimony, then the Court must make fact finding to 2 determine which version of the facts -- the Court 3 itself -- is true. And the Court is placed in a 4 position of having to decide those. 5 There has only been one version of 6 the facts decided here, and I would say on the 7 record that I don't think any of the witnesses lied 8 during the course of the testimony that I heard. I 9 find the facts in this case to be consistent with 10 their testimony. And it's correct that during 11 direct testimony and cross-examination, the 12 witnesses, in particular Morrissey and Lilley, on 13 occasion admitted -- I think it was Lilley, 14 primarily, now that I think, because he was the 15 author of the affidavit -- admitted certain matters 16 and had no recollection of others. Or he had no 17 recollection, and other witnesses testified to the 18 contrary, then I believe the other witnesses. 19 Frankly, unless counsel can draw my 20 attention to it, I don't recall a specific instance 21 where there was a variation where one witness said 22 one thing and another said, "No, it was something 23 else." 24 So I'm going to dispense with the 25 effort to go back through all of the testimony and 284 1 make all those findings of fact because there 2 aren't really any in dispute. 3 Taking all that, then, that does 4 simplify the task a bit, into account, and I took 5 notes. I thought about this. I read the memos 6 when they came in. I read them just before the 7 testimony. I heard the testimony of the witnesses. 8 As I reflected earlier, any time a 9 person performing the task that a police officer 10 does as an affiant in obtaining a search warrant, 11 any time that person attempts to take evidence that 12 he has obtained from other persons or other 13 sources, several different persons or sources, and 14 boil it down or summarize it or attempt to state it 15 concisely in a written affidavit, there is 16 certainly a risk that that person will consider and 17 then intentionally not place something in, not 18 realizing the relevance of it, that the person will 19 forget what the person has been told, that the 20 person may overlook that item in his or her notes, 21 that the person may misinterpret what that person 22 has been told, that the person -- there is always 23 the possibility that the person will specifically 24 and intentionally edit or redact from the 25 information the person has received information so 285 1 as to cast the evidence of the facts stated in the 2 affidavit in a light that that person wishes to 3 give it. 4 There are all sorts of 5 possibilities, but, frankly, the biggest risk is 6 that in the process of summarizing or boiling down, 7 the person either forgets to state something that 8 otherwise he or she should have placed in the 9 affidavit or doesn't realize the time -- at the 10 moment the significance of it. 11 We are, after all, reviewing these 12 affidavits with 20/20 hindsight. Been a lot of 13 investigation that's gone on. It is possible that 14 some of the matters that now we all -- you all in 15 particular see as relevant, the officer didn't see 16 as all that relevant at the time, and now we 17 discover that it is. So it is a common sense 18 approach. We see that in cases. 19 While it's true that during this 20 hearing I have heard that there have been 21 omissions, that there were facts known to Officer 22 Lilley that he did not place in the affidavit, and 23 while it's also true that the record will disclose 24 that there are inaccuracies, that is witnesses now 25 recall having been told one thing while in fact he 286 1 has placed something else in the affidavit, I don't 2 find that any of those rise to the level -- and we 3 have talked about them here today, but I don't find 4 that there is any substantial basis for questioning 5 the good faith, the accuracy, the accuracy with 6 regard to material matters and truthfulness of 7 Officer Lilley, and so I am going to deny the 8 motion to controvert, and I've already ruled on the 9 facts as stated in the affidavit, and I am denying 10 the motion to suppress. 11 That's my ruling. Any questions? 12 Okay. 13 We do have the matter of the 14 admissibility of statements made by the defendant 15 and, after all, that is -- as I recall, I was told 16 that really the search didn't find evidence, as I 17 recall, that was incriminating. The product of the 18 search was statements given by defendant. I have 19 my notes. I have not recently reviewed those. I 20 don't recollect whether I ever heard argument about 21 voluntariness issues, custodial issues, that sort 22 of thing. 23 Any argument on that? There was 24 substantial basis for attempting to suppress those, 25 the search warrant, or was it -- 287 1 MR. SUSSMAN: I think the record as 2 developed is such that if the searches were valid, 3 then there wouldn't have otherwise been a 4 substantial basis in the record to question the 5 voluntariness of the statements. 6 THE COURT: Then consistent with 7 that, I do find the statements were freely and 8 voluntarily made and occurred at the time that the 9 defendant was not in custody, and that the 10 statements, if relevant, are admissible. 11 Again, the key to all this is the 12 search warrant, the affidavit. And if I'm wrong on 13 the motion to suppress, the motion to controvert, 14 then seems fairly clear under the law that the 15 statements are not admissible and the defendant has 16 a remedy. 17 MR. TINTERA: Well, actually, I 18 don't think that's correct, Judge. I know you 19 don't want to hear this, but -- 20 THE COURT: I guess I don't need to 21 decide that. 22 MR. TINTERA: Thank you. 23 THE COURT: But there is a remedy 24 and it could be argued if I'm wrong on the first 25 two issues, the motion to suppress and the motion 288 1 to controvert. 2 MR. TINTERA: That's true. But I 3 believe the statements are even admissible under 4 any scenario since the police did not -- if the 5 Court had found an illegal -- the police did not 6 trade on that illegality to overcome Mr. Schwartz's 7 free will and voluntariness to get any admissions. 8 In a nutshell, that's my position. 9 THE COURT: The breadth of my 10 opinion probably was too great when I said what I 11 did. I understand what you're saying. There may 12 be an argument yet to be made on that. If I'm 13 wrong on the first issue, the search, the motion to 14 controvert, then, Mr. Sussman, there still is an 15 issue about the admissibility of the statements. 16 MR. SUSSMAN: I, for the record, 17 don't want my remarks to the Court to appear to be 18 a conception -- 19 THE COURT: It won't be. 20 MR. SUSSMAN: -- that the statements 21 are independently admissible. 22 THE COURT: I won't take it as that 23 and the record will show that. 24 MR. SUSSMAN: It's our position that 25 the violation of Mr. Schwartz's rights because of 289 1 the search warrant could not be separated from the 2 time and place of the statements because they were 3 made during the course of the search. 4 THE COURT: I believe what you were 5 saying is there were not any material issues that 6 questions with regard to voluntariness for purposes 7 of custody, whether that sort of thing -- 8 MR. SUSSMAN: Independent of the 9 search warrant. 10 THE COURT: So that we're clear on 11 that, keeping in mind the way we're trying this, 12 I'm not about to trap anybody or say anything that 13 in any way limits anybody's rights. I'm only going 14 to rule on what's necessary. 15 Anything else, then? 16 Mr. Tintera will draft an 17 appropriate form of order and submit it to 18 Mr. Sussman and I'll get it when I get back from my 19 fishing trip. 20 MR. SUSSMAN: There are two 21 housekeeping matters that do -- with regard to 22 discovery that do involve Mr. Tintera. 23 In reviewing the transcript, I note 24 Mr. Lilley had testified and he said he had made 25 handwritten notes of those statements. 290 1 MR. TINTERA: I think they are 2 discoverable if they exist. 3 MR. SUSSMAN: We'd ask those be 4 disclosed. 5 THE COURT: Thank you, Mr. Tintera. 6 MR. SUSSMAN: The other thing that I 7 noticed when -- and I asked Mr. Tintera about it 8 the other day, was that there -- Alan Watson, from 9 the Sheriff's Department, who did the analysis of 10 Mr. Schwartz's computer records that were seized, 11 made copies of the complete hard drive, the entire 12 contents of Mr. Schwartz's electronic data, and 13 those were preserved on disks, and I'd ask 14 Mr. Tintera to provide us copies of those and to 15 check to see if they still exist, and I want to 16 find out today if he has been able to determine 17 that. 18 MR. TINTERA: No. 19 MR. SUSSMAN: No, they don't exist, 20 or no, you haven't been able to determine that? 21 MR. TINTERA: B. 22 MR. SUSSMAN: Okay. 23 THE COURT: You'll do that, won't 24 you? 25 MR. TINTERA: I've already started 291 1 that, but I haven't heard back from Detective 2 Watson. 3 THE COURT: Given what I've seen by 4 the cooperation of everybody, you'll be able to 5 resolve that. If they exist, you'll get copies of 6 that. 7 Anything else? 8 MR. SUSSMAN: No, Your Honor. 9 MR. TINTERA: Since we're talking 10 discovery, I've gotten one or two reports from the 11 defense. I think the parties should know it is my 12 position if witnesses that are going to be called 13 by the State have been interviewed by the defense 14 and have given some sort of different version of 15 events that are in the police reports, I believe 16 those are also discovery and subject to discovery 17 by the State, because they reasonably would know 18 those were going to be used in trial. I note some 19 defense attorneys have taken issue with that 20 position, but -- 21 THE COURT: Mr. Sussman wouldn't 22 take that position. 23 MR. TINTERA: I don't know, I 24 haven't gotten very much from them. 25 THE COURT: Mr. Sussman has not been 292 1 in my Court before. I've always ruled -- I don't 2 know what your practice is, but I've always ruled 3 when you have interviewed one of the State's 4 witnesses and get -- I've always ruled that one 5 should expect that witnesses would testify 6 consistently with what they have told the police 7 investigators. That's the expectation. 8 If your investigator or you have 9 interviewed any of the State's witnesses and have 10 obtained a different version of the evidence, then 11 you reasonably would expect that you are going to 12 use that to impeach them when they testify. And 13 having obtained that evidence and intending to 14 elicit that statement, it's discoverable, so you 15 ought to give it to the State. 16 MR. SUSSMAN: Your Honor, I 17 understand that. The case is escaping me, but I 18 recall the case, but I would inform the Court and 19 Mr. Tintera at this point, we have not interviewed 20 any of those witnesses. 21 I've been asked by Intel -- informed 22 by Mr. Woodard not to contact the witnesses without 23 going through Intel. We will be asking to 24 interview various witnesses, and any reports 25 generated will be turned over to the State. And as 293 1 I indicated to Mr. Tintera, by and large, that's 2 one of the reasons why the discovery to the State 3 has been apparently slow, because we have not 4 interviewed most of the witnesses who are Intel 5 employees. 6 THE COURT: Our next appearance date 7 is for trial, July 11? 8 MR. TINTERA: It is July 11. 9 THE COURT: Unless there is 10 something else -- counsel bring it to my 11 attention -- we'll see you on that morning. 12 MR. TINTERA: In regard to 13 scheduling, what's your preference in regard to 14 jury selection? I know it's a little varied, 15 but -- 16 THE COURT: I'd work with counsel. 17 If you can agree on a method, I'm probably not 18 going to interfere with it. Absent agreement, I 19 still do it the old way; that is, one at a time. 20 But if the parties can agree to some reasonable 21 variation of that, I'll go long with it. Either a 22 combination of questions to the entire panel with 23 them being numbered in advance or not numbered in 24 advance, plus some individual questioning, if you 25 wish. However you wish to do it. As long as it 294 1 doesn't take longer than the old method. 2 In my mind, there are some 3 variations of the so-called new method that seem to 4 work pretty well. Counsel may explore some of 5 those possibilities. 6 MR. SUSSMAN: I'll talk with 7 Mr. Tintera about that. 8 THE COURT: If you come in and agree 9 upon a plan, it's likely I'll permit you to do it. 10 Thank you. 11 MR. TINTERA: Thank you, Judge. 12 MR. SUSSMAN: Thank you, Your Honor. 13 (Evening recess.) 14 15 16 17 18 19 20 21 22 23 24 25