CA2: Retention of mirror image of hard drives for 3 yrs before searching them under SW was at least good faith

The government copied defendant’s hard drives in 2003 but didn’t get around to searching them until 2006. After discussing the privacy interests in data and the wealth of information that could be held on a computer, the court said: “Having noted Ganias’s argument, we do not decide its merits. We instead turn to the question of good faith.” This tells you all you need to know: the good faith exception applies. The court mentions the failure of the defense to file a motion for return of the copies. United States v. Ganias, 2016 U.S. App. LEXIS 9706 (2d Cir. May 27, 2016) (en banc):

Defendant-Appellant Stavros Ganias appeals from a judgment of the United States District Court for the District of Connecticut (Thompson, J.) convicting him, after a jury trial, of two counts of tax evasion in violation of 26 U.S.C. § 7201. He challenges his conviction on the ground that the Government violated his Fourth Amendment rights when, after lawfully copying three of his hard drives for off-site review pursuant to a 2003 search warrant, it retained these full forensic copies (or “mirrors”), which included data both responsive and non-responsive to the 2003 warrant, while its investigation continued, and ultimately searched the non-responsive data pursuant to a second warrant in 2006. Ganias contends that the Government had successfully sorted the data on the mirrors responsive to the 2003 warrant from the non-responsive data by January 2005, and that the retention of the mirrors thereafter (and, by extension, the 2006 search, which would not have been possible but for that retention) violated the Fourth Amendment. He argues that evidence obtained in executing the 2006 search warrant should therefore have been suppressed.

We conclude that the Government relied in good faith on the 2006 warrant, and that this reliance was objectively reasonable. Accordingly, we need not decide whether retention of the forensic mirrors violated the Fourth Amendment, and we AFFIRM the judgment of the district court.

. . .

As we have said, we need not resolve the ultimate question whether the Government’s retention of forensic copies of Ganias’s hard drives during the pendency of its investigation violated the Fourth Amendment. We conclude, moreover, that we should not decide this question on the present record, which does not permit a full assessment of the complex and rapidly evolving technological issues, and the significant privacy concerns, relevant to its consideration. Having noted Ganias’s argument, we do not decide its merits. We instead turn to the question of good faith.

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