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United States v. Tan

United States District Court, N.D. Oklahoma

May 31, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HONGJIN TAN, Defendant.

          OPINION AND ORDER

          GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE.

         Before the court is the Motion to Suppress [Doc. 49] of defendant Hongjin Tan. He seeks to suppress all evidence obtained under three search warrants, which, he contends, lack the particularity required by the Fourth Amendment. For the following reasons, the motion is granted in part and denied in part.

         I. Background

         A. Charges against Mr. Tan

         On December 20, 201');">18, the government filed a criminal complaint against Mr. Tan, along with a supporting affidavit signed by James Judd, a Special Agent with the Federal Bureau of Investigation. [Doc. 1');">1]. According to the affidavit, Mr. Tan is a citizen of The People's Republic of China. [Doc. 1');">1, p. 2 ¶ 7]. In April 201');">17, he was hired as a research engineer at a large international corporation located in Oklahoma, which the affidavit refers to as “Company A.” [Id., p. 2 ¶¶ 3, 7]. Citing information provided by Company A, the affidavit further states that, on December 1');">12, 201');">18, Mr. Tan contacted his supervisor, advised he was resigning from Company A, and gave two weeks' notice. [Id., 3');">p. 31');">10]. He told his supervisor that he did not currently have a job offer, but was negotiating with companies in China. [Id.].

         M r. Ta n 's resignation prompted Company A to revoke his access to company systems and to conduct a review of his computer activity. [Id., 3');">p. 31');">11');">1]. That review revealed that Mr. Tan had accessed hundreds of files, including research reports. [Id., 3');">p. 31');">12]. These files included information that Company A considers to be trade secrets and outside the scope of M r. Ta n 's employment. [Id.]. The review also revealed Mr. Tan downloaded restricted files to a personal thumb drive. [Id.]. Based on that information, Company A officials escorted Mr. Tan from Company A property and barred him from returning. [Id., 3');">p. 31');">13].

         Later that day, Mr. Tan sent a text message to his supervisor stating that he had “a memory disk” containing “lab data” and “papers/reports.” [Id., p. 4 ¶ 1');">15]. Mr. Tan inquired about the best way of handling the information and whether he could still read the papers/reports. [Id.]. At his supervisor's request, Mr. Tan returned the flash drive to Company A. [Id., p. 4 ¶¶ 1');">16-1');">17]. Upon reviewing the drive, Company A determined that it contained research documents in deleted and undeleted files that would have a tremendous impact to Company A in terms of technological and economic loss if they were shared or given to a competing company. [Id., p. 4 ¶ 1');">18]. The review further revealed that the deleted files had been deleted on December 1');">11');">1, 201');">18, the day before Mr. Ta n 's resignation. [Id., p. 4 ¶ 1');">19]. The affidavit alleges additional facts pertaining to Mr. Tan's contacts with a Chinese competitor of Company A, records of Mr. Tan's recent travel to China, and Company A's protection of its trade secrets. [Id., pp. 5-8].

         On January 1');">16, 201');">19, a grand jury returned an indictment charging Mr. Tan with three counts: (1');">1) theft of trade secrets, in violation of 1');">18 U.S.C. § 1');">1832(a)(1');">1); (2) unauthorized transmission of trade secrets, in violation of 1');">18 U.S.C. § 1');">1832(a)(2), and (3) unauthorized possession of trade secrets, in violation of 1');">18 U.S.C. § 1');">1832(a)(3). [Doc. 1');">18].

         B. Search Warrants

         On December 1');">19, 201');">18, the government applied for a warrant to search Mr. Tan's residence and vehicle in relation to an alleged violation of 1');">18 U.S.C. § 1');">1832(a)(2). [Doc. 55-1');">1, p. 6-20]. The application was assigned case number 1');">18-mj-1');">175-JFJ. Special Agent Judd swore to and signed the application and a supporting affidavit before United States Magistrate Judge Jodi F. Jayne, who issued the warrant that day. [Id., pp. 2-6, 1');">14].

         On January 3, 201');">19, the government applied for a warrant to search two of Mr. Tan's Yahoo e-mail accounts in relation to an alleged violation of 1');">18 U.S.C. §§ 1');">1832(a) and 1');">1030(a)(1');">1). [Doc. 55-2, pp. 7-20]. The application was assigned case number 1');">19-mj-2-PJC. United States Magistrate Judge Paul J. Cleary issued the warrant that day. [Id., pp. 2-6].

         On February 1');">11');">1, 201');">19, the government applied for a warrant to search Mr. Tan's Gmail account in relation to an alleged violation of 1');">18 U.S.C. §§ 1');">1832(a) and 1');">1030(a)(1');">1). [Doc. 55-3, pp. 7-20]. The application was assigned case number 1');">19-mj-37-FHM. United States Magistrate Judge Frank H. McCarthy issued the warrant that day. [Id., pp. 2-6].

         After Mr. Tan filed the instant motion to suppress, the government filed a written response, and Mr. Tan filed a reply. [Doc. 50; Doc. 60]. On May 1');">17, 201');">19, this court conducted an evidentiary hearing on the motion. See [Doc. 79]. During the hearing, the government called five witnesses to testify: James Judd, Shannon Clark, Brian Dean, Steve Carnivale, and Jeremy Sykes. All five are special agents with the FBI.

         II. Legal Standards

         A. Particularity Requirement

         The Fourth Amendment of the 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.

         Thus, a search warrant must particularly describe the persons or things that the government may seize. This requirement “ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers ...


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