Rep. Jefferson’s search: Photograph of documents a search, but permitted by independent source

Talking high-resolution photographs and notes of documents seen during the execution of a warrant is a search and seizure of the information in the documents. United States v. Jefferson, 571 F. Supp. 2d 696 (E.D. Va. 2008):

Certainly, Hicks should not be read to sanction a result so inimical to Fourth Amendment values. Instead, the more reasonable reading of Hicks, consistent with the Hoffa line of cases, is that a search and a seizure of information that is subject to the strictures of the Fourth Amendment occurs where, as here, law enforcement officials photograph the contents of documents, or take notes reflecting the contents of documents. That search and seizure of information does not offend the Fourth Amendment (1) where the documents fall within the warrant’s scope or (2) where the document discloses probable cause in plain view, i.e. on its face. If the seizure satisfies neither of these conditions, then the document’s contents may not be photographed or otherwise recorded without running afoul of the Fourth Amendment. This does not mean, however, that law enforcement officials may not examine documents in the course of the search to ascertain whether they fall within the scope of the warrant. Yet, if this examination discloses neither that the document is within the scope of the warrant, nor that there is probable cause to seize it under the plain view doctrine, agents may not seize the document’s information by photographing, copying, or making notes of it. Of course, the agents are not required to erase from their memories what they saw in the documents, and if they subsequently obtain information that, coupled with what they saw, gives them probable cause to seize the documents, they may then seek a warrant to seize the documents.

The independent source doctrine permitted the seizure here.

In addition to the thirteen items seized by photograph, agents seized certain information by way of written notes made after reviewing bank records discovered in the course of their search. Specifically, agents seized bank account numbers, names of account-holders, and names of financial institutions. The government argues that seizure of defendant’s banking information was authorized under the plain view doctrine because the agents were investigating various schemes by which defendant allegedly solicited and received bribes in return for the performance of official acts. The government argues that because the crime under investigation involved the receipt of things of value, agents had probable cause to believe that the bank accounts were evidence of a crime.

The government’s argument is not entirely persuasive. The mere fact that the alleged crime under investigation involved the receipt of funds may not give rise to a reasonable belief that all of a suspect’s financial records are themselves evidence of a crime. In any event, suppression of defendant’s bank account information is unwarranted because law enforcement officials obtained the same information by legitimate, independent means. Specifically, the FBI submitted a request to the United States Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) for information related to their investigation into defendant’s alleged crimes. The FinCEN request resulted in the production of the same financial information seized by the agents during the August 3, 2005 search. The FinCEN request was not based on information seized during the search, and defendant has not challenged the validity of the FinCEN search. In addition, the government introduced evidence during the course of the suppression hearing showing that law enforcement officials obtained information from multiple sources, including credit reports and subpoenas served on various financial institutions, regarding all accounts that the government seeks to introduce during its case in chief. Because agents obtained this information from legitimate, independent sources, suppression is not warranted.