The government’s keeping three hard drives for 2½ years including many files that were not responsive to the search warrant was unreasonable because it became a de facto general warrant. “Instead, we consider a more limited question: whether the Fourth Amendment permits officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on that computer for use in future criminal investigations. We hold that it does not.” United States v. Ganias, 2014 U.S. App. LEXIS 11222 (2d Cir. June 17, 2014):
These Fourth Amendment protections apply to modern computer files. Like 18th Century “papers,” computer files may contain intimate details regarding an individual’s thoughts, beliefs, and lifestyle, and they should be similarly guarded against unwarranted Government intrusion. If anything, even greater protection is warranted. See, e.g., Galpin, 720 F.3d at 446 (“[A]dvances in technology and the centrality of computers in the lives of average people have rendered the computer hard drive akin to a residence in terms of the scope and quantity of private information it may contain.”); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009) (“The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs ….”); Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 569 (2005) (explaining that computers have become the equivalent of “postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more”).
Not surprisingly, the ability of computers to store massive volumes of information presents logistical problems in the execution of search warrants. It is “comparatively” commonplace for files on a computer hard drive to be “so intermingled that they cannot feasibly be sorted on site.” Tamura, 694 F.2d at 595. As evidenced by this case, forensic analysis of electronic data may take months to complete. It would be impractical for agents to occupy an individual’s home or office, or seize an individual’s computer, for such long periods of time. It is now also unnecessary. Today, advancements in technology enable the Government to create a mirror image of an individual’s hard drive, which can be searched as if it were the actual hard drive but without interfering with the individual’s use of his home, computer, or files.
In light of the significant burdens on-site review would place on both the individual and the Government, the creation of mirror images for offsite review is constitutionally permissible in most instances, even if wholesale removal of tangible papers would not be. Indeed, the 2009 amendments to the Federal Rules of Criminal Procedure, which added Rule 41(e)(2)(B), clearly contemplated off-site review of computer hard drives in certain circumstances.10 Although Rule 41(e)(2)(B) was not in effect in 2003, when the warrant was executed with respect to Ganias’s computers, case law both before and after the rule’s adoption has recognized that off-site review of seized electronic files may be necessary and reasonable. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012); United States v. Hill, 459 F.3d 966, 976-77 (9th Cir. 2006); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999).
The off-site review of these mirror images, however, is still subject to the rule of reasonableness. See, e.g., Ramirez, 523 U.S. at 71 (“The general touchstone of reasonableness which governs Fourth Amendment analysis governs the method of execution of the warrant.” (citation omitted)). The advisory committee’s notes to the 2009 amendment of the Federal Rules of Criminal Procedure shed some light on what is “reasonable” in this context. Specifically, the committee rejected “a presumptive national or uniform time period within which any subsequent off-site copying or review of the media or electronically stored information would take place.” Fed. R. Crim. P. 41(e)(2)(B) advisory committee’s notes to the 2009 Amendments. The committee noted that several variables — storage capacity of media, difficulties created by encryption or electronic booby traps, and computer-lab workload — influence the duration of a forensic analysis and counsel against a “one size fits all” time period. Id. In combination, these factors might justify an off-site review lasting for a significant period of time. They do not, however, provide an “independent basis” for retaining any electronic data “other than [those] specified in the warrant.” United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1171 (9th Cir. 2010) (en banc).
Even where a search or seizure violates the Fourth Amendment, the Government is not automatically precluded from using the unlawfully obtained evidence in a criminal prosecution. United States v. Julius, 610 F.3d 60, 66 (2d Cir. 2010). “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring v. United States, 555 U.S. 135, 144 (2009). Suppression is required “only when [agents] (1) … effect a widespread seizure of items that were not within the scope of the warrant, and (2) do not act in good faith.” United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir. 2000) (internal quotation marks and citations omitted).
The Government effects a “widespread seizure of items” beyond the scope of the warrant when the Government’s search “resemble[s] a general search.” Id. at 140-41. Government agents act in good faith when they perform “searches conducted in objectively reasonable reliance on binding appellate precedent.” Davis v. United States, 131 S. Ct. 2419, 2423-24 (2011). When Government agents act on “good-faith reliance [o]n the law at the time of the search,” the exclusionary rule will not apply. United States v. Aguiar, 737 F.3d 251, 259 (2d Cir. 2013). “The burden is on the government to demonstrate the objective reasonableness of the officers’ good faith reliance.” United States v. Voustianiouk, 685 F.3d 206, 215 (2d Cir. 2012) (internal quotation marks omitted).
. . .
Instead, we consider a more limited question: whether the Fourth Amendment permits officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on that computer for use in future criminal investigations. We hold that it does not.
If the 2003 warrant authorized the Government to retain all the data on Ganias’s computers on the off-chance the information would become relevant to a subsequent criminal investigation, it would be the equivalent of a general warrant. The Government’s retention of copies of Ganias’s personal computer records for two-and-a-half years deprived him of exclusive control over those files for an unreasonable amount of time. This combination of circumstances enabled the Government to possess indefinitely personal records of Ganias that were beyond the scope of the warrant while it looked for other evidence to give it probable cause to search the files. This was a meaningful interference with Ganias’s possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 708 (1983) (detaining a traveler’s luggage while awaiting the arrival of a drug-sniffing dog constituted a seizure); see also Soldal v. Cook Cnty., 506 U.S. 56, 62-64, 68 (1992) (explaining that a seizure occurs when one’s property rights are violated, even if the property is never searched and the owner’s privacy was never violated); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (“The power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.”).
We conclude that the unauthorized seizure and retention of these documents was unreasonable. The Government had no warrant authorizing the seizure of Ganias’s personal records in 2003. By December 2004, these documents had been separated from those relevant to the investigation of American Boiler and IPM. Nevertheless, the Government continued to retain them for another year-and-a-half until it finally developed probable cause to search and seize them in 2006. Without some independent basis for its retention of those documents in the interim, the Government clearly violated Ganias’s Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation.
