E.D.N.Y.: Officers’ limits and good faith saved technically overbroad document SW

The Medicare fraud limitation in this document search warrant was only stated in a couple of paragraphs of the things to be seized, so it was technically overbroad. The officers’ conduct of the search, however, was limited and done in good faith, and only 4% of the 28,000 pages of documents seized were outside the warrant. Therefore, even though it was technically overbroad, it was clearly executed in good faith and the motion to suppress is denied. United States v. Cwibeker, 2014 U.S. Dist. LEXIS 178752 (E.D. N.Y. December 31, 2014):

The Court struggles to find any conduct by Agent Doherty or her team members bearing the culpability required to warrant exclusion of the evidence seized. To the contrary, much of Agent Doherty’s behavior–both before application and during execution of the Search Warrant–supports the Court’s decision to apply the good faith exception. First, Agent Doherty consulted with United States Attorneys prior to application for the search warrant, presumably at least in part to ensure that the rules were being followed. See Riccardi, 405 F.3d at 864 (“By consulting the prosecutor, [the executing officers] showed their good faith in compliance with constitutional requirements.”). Second, the Doherty Affidavit set forth far more detail than might ordinarily be required to establish probable cause, also in an apparent effort to ensure compliance with the applicable rules. Third, prior to execution of the Search Warrant, Agent Doherty circulated her “Operational Plan,” which cabined the permissible scope of the investigation far tighter than the constitutionally defective Attachment B. Fourth, Agent Doherty led the execution of the Search Warrant, and nothing suggests that she relied upon the defective Search Warrant over her knowledge of the investigation and the limits contemplated by the Affidavit. See Rosa, 626 F.3d at 66 (“Because there is no evidence that Investigator Blake and his team of officers actually relied on the defective warrant, as opposed to their knowledge of the investigation and the contemplated limits of the town justice’s authorization, in executing the search, the requisite levels of deliberateness and culpability justifying suppression are lacking”). Finally, and perhaps most importantly, the results of the execution of the Search Warrant convince the Court that the search was conducted in good faith and devoid of any conduct warranting exclusion. Despite Defendant’s specious challenges to each and every non-responsive item seized, the Court, viewing the search in its entirety and in light of the surrounding circumstances, does not find a six-hour search resulting in an error rate of less than five percent offensive to the Fourth Amendment.

In United States v. Zemlyansky, the court held that the good faith exception to the exclusionary rule did not apply to evidence seized pursuant to a warrant that was both overbroad and not sufficiently particular. 944 F. Supp. 2d at 476. The court found that the officers who executed the search could not have reasonably relied upon the facially deficient warrant because the law surrounding the particularity and breadth requirements was well settled. Id. at 472. While the Court agrees with Zemlyansky’s statement of the law, it finds that the language of the Search Warrant in this case, particularly the “regarding Medicare” limitations, renders the constitutionality of the Search Warrant a far closer call than the one in Zemlyansky, and it would be improper to charge Agent Doherty and her team with knowledge that the warrant would later be invalidated.

Moreover, while the facts surrounding the execution of the warrant in Zemlyansky supported exclusion of the evidence, the execution of the Search Warrant here counsels for the opposite result. In Zemlyansky, the agent who applied for the warrant neither participated in the search nor meaningfully relayed the contents of his affidavit to those conducting the search. Id. at 465-66. In contrast, Agent Doherty both summarized the contents of her affidavit to the search team and led the search in a manner consistent with the authorization contemplated by that Affidavit. More importantly, the officers in Zemlyanski actually relied upon the defective warrant. Id. at 474 (“The binders weren’t taken based on my understanding of the case, what it is that they were looking for, based on the search warrant and rider.” (internal quotation marks omitted)). Here, there is no indication that the defects in the Search Warrant, rather than Agent Doherty’s knowledge of the case, influenced the parameters of the search.

Accordingly, the Court finds that the Search Warrant was not so facially deficient as to render reliance upon it unreasonable. That Agent Doherty appears to have acted in good faith in her application for the Search Warrant, her instruction of its parameters to the search team, and her execution of the Search Warrant further supports the Court’s conclusion that suppression of the evidence seized is inappropriate.