Younger abstention bars civil action over search still under investigation

Younger abstention bars a federal civil action against a search that is still under investigation by state officials. Mirka United, Inc. v. Cuomo, 2007 U.S. Dist. LEXIS 87385 (S.D. N.Y. November 27, 2007):

Numerous courts have held that investigatory proceedings that occur pre-indictment and that are an integral part of a state criminal prosecution may constitute “ongoing state proceedings” for Younger purposes. See, e.g., Texas Association of Business v. Earle, 388 F.3d 515, 519-21 (5th Cir. 2004) (A state grand jury proceeding in which subpoenas have been issued constitutes an ‘ongoing state proceeding’ such that abstention is warranted.); Craig v. Barney, 678 F.2d 1200, 1202 (4th Cir. 1982); Kaylor v. Fields, 661 F.2d 1177, 1182 (8th Cir. 1981) (“The issuance [by the Arkansas Attorney General] of the subpoenas … is part of a state proceeding in which the plaintiffs to this action had an opportunity to present their claims” and therefore requires Younger abstention.); J. & W. Seligman & Co. Inc. v Spitzer, No. 05 Civ. 7781, 2007 WL 2822208, at *5 (S.D.N.Y. Sep. 27, 2007) (“[T]he issuance of compulsory process … in criminal cases, initiates an ‘ongoing’ proceeding for the purposes of Younger abstention.”); Law Firm of Daniel P. Foster, P.C. v. Dearie, 613 F. Supp. 278, 280 (E.D.N.Y. 1985) (“Thus, were the court to grant the relief sought, the immediate and direct effect would be to enjoin the state court from enforcing its order to comply with the subpoena and the state from pursuing a grand jury investigation, which is a criminal proceeding.”); Notey v. Hynes, 418 F. Supp. 1320, 1326 (E.D.N.Y. 1976) (“[W]hen a grand jury has been impaneled and is sitting and investigating, there is a ‘criminal case’ and in New York a criminal proceeding.”).

Search warrants are sometimes necessary to develop evidence sufficient to commence a criminal action and are functionally connected to criminal prosecutions. Moreover, the instant search warrant was authorized and executed during and in connection with a grand jury investigation. It would strain logic as well as both New York and federal law to conclude that a search warrant authorized by a New York state judge and executed during the course of an ongoing grand jury investigation is not part of an ongoing state proceeding. In any event, as that grand jury investigation has now resulted in an indictment against Kagan and others, state criminal proceedings are now clearly underway.

“Defendant’s consent, after being shown an invalid search warrant for the [his] property, was not a valid consent.” United States v. Jones, 2007 U.S. Dist. LEXIS 87221 (S.D. Ohio November 27, 2007).*

Consent was found valid by defendants’ actions, without words. United States v. Hernandez, 2007 U.S. Dist. LEXIS 87080 (D. Utah November 27, 2007).*