Defendant contends that the overseizure and retention of emails obtained by warrant that aren’t relevant to the crime under investigation requires suppression of even that which was validly obtained. No court has gone that far. His creative attempt to extend the law is denied. denied. United States v. Aboshady, 2018 U.S. Dist. LEXIS 28292 (D. Mass. Feb. 22, 2018):
The defendant’s novel theory proceeds as follows:
1. The United States Supreme Court’s decision in Riley v California, 134 S.Ct. 2473, 189 L. Ed. 2d 430 (2014) created a “new balancing of law enforcement and privacy interests” for the “digital age”.
2. A concurring opinion of the Ninth Circuit Court of Appeals sets out “best practices” for the search and seizure of electronically stored information.
3. The government violated the Fourth Amendment’s prohibition on unreasonable seizure when it retained electronic information that was not responsive to the relevant warrant in contravention of those best practices.
4. The emails that were responsive to the warrant should be suppressed because the “government’s actions were deliberate and done with reckless disregard for Mr. Aboshady’s” constitutional rights.
The contorted theory is tenuous and unpersuasive.
First, as defendant concedes, ordering suppression of electronic information within the scope of a warrant due to retention of electronic information outside the scope of that warrant is not binding law in any federal circuit. Compare United States v. Ganias, 755 F.3d 125, 141 (2d Cir. 2014) (ordering suppression of electronic evidence where government seized and retained non-responsive computer records then searched those records and again with a second warrant) with United States v. Ganias, 824 F.3d 199, 200 (2d Cir. 2016) (en banc), cert. denied, 137 S. Ct. 569, 196 L. Ed. 2d 445 (2016) (holding, upon rehearing en banc, that officers relied in good faith on second warrant such that evidence should not be suppressed and declining to answer whether the retention constituted an unreasonable seizure).
Second, as defendant correctly notes, Riley concerned whether police generally must secure a warrant to search a cell phone seized incident to arrest. Riley, 134 S.Ct. at 2485. There, the Court determined that a warrant was required to search the electronic contents of a cell phone, in part, because of “substantial additional intrusion on privacy beyond the arrest” of the search. See id. at 2489. Here, the government obtained a warrant and, although defendant maintains that the Aboshady warrant “resembles the forbidden general warrant”, defendant does not challenge the validity or constitutionality of that warrant.