S.D.N.Y.: Overseizure from iCloud account wasn’t so flagrant it required suppression; govt agreed in advance to exclude the overseized

The government’s overseizure from defendant’s iCloud account wasn’t so flagrant or egregious to warrant suppression. The government agreed up-front to exclude the obvious, and that’s a sufficient remedy. United States v. Pinto-Thomaz, 2019 U.S. Dist. LEXIS 26262 (S.D. N.Y. Feb. 20, 2019):

The Government has already agreed not to offer into evidence either the messages seized outside of the date limitation of Section II of the warrant or the 143 photos and 146 text files seized outside of the scope of Section III. See Government’s Post-Hearing Memorandum of Law in Connection with Defendants’ Motions to Suppress Evidence (“Gov’t Mem. 2”), Dkt. 91, at 31 n.4; Government’s Memorandum of Law in Opposition to the Defendants’ Pretrial Motions (“Govt. Mem. 1”), Dkt. 67, at 42-43. Accordingly, the only remaining question is whether this exclusion is adequate, or whether the warrant’s executing agent acted in “flagrant disregard” of the warrant’s terms such that blanket suppression is warranted.

The Court finds no ground for imposing the “extreme remedy” of blanket suppression here. The executing agent did not “grossly exceed” the terms of the warrant, which generally authorized widespread seizure of a number of broadly defined categories of evidence. See Liu, 239 F.3d at 141-42 (considering the breadth of the warrant as relevant to whether a general search was conducted). The executing agent undertook and thoroughly documented a “fairly systematic inventory” to search for the items enumerated in the warrant, erring only in failing to notice an internal inconsistency in the warrant and then, at a later point in the execution of the warrant, misinterpreting the warrant’s terms to allow for what was in fact an unauthorized seizure of items from four months (which encompassed the time period of the alleged crime). Id. While these were errors, and ones that resulted in the seizure of a number of individual items outside the warrant’s scope, this was not “an indiscriminate rummaging” throughout the iCloud account. Id.

The Court finds little, if any, deterrence value in suppressing the entire warrant in these circumstances. As discussed above, the Supreme Court has stressed that exclusion is appropriate only where conduct is “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 555 U.S. at 144. Pinto-Thomaz argues that Anderson’s conduct did not meet an objective standard of good faith reasonableness, but the Court believes that Anderson’s errors are adequately addressed in this instance by excluding the items improperly seized. Specifically, the Court finds that there is no evidence here that the errors were deliberate. Rather, Anderson’s errors were committed in what appears to have been a diligent, if at moments misguided, effort to comply with the warrant’s terms by an officer executing his first electronic search warrant. See id. at 145 (considering “a particular officer’s knowledge and experience” as relevant to an objective good faith inquiry). After carefully evaluating Anderson’s testimony and credibility, as well as all the facts of record, the Court concludes that there is simply no evidence of any deliberate violations of the warrant or extraordinary facts that would require the unusual imposition of blanket suppression, as opposed to the already-conceded exclusion of the wrongfully-seized evidence.

In conclusion, Pinto-Thomaz’s motion to suppress all evidence obtained pursuant to the iCloud warrant is denied.