S.D.N.Y.: Def had standing in his own work computer but not the company server

Defendant had a reasonable expectation of privacy in his own work computer, but not on what was on the company server. Because the crimes under investigation were listed in the search warrant, the warrant wasn’t general. United States v. Mendlowitz, 2019 U.S. Dist. LEXIS 33664 (S.D.N.Y. Mar. 4, 2019):

With regard to the search and seizure of the computers from Mendlowitz’s own workspace, I find that Mendlowitz has established a sufficient privacy interest to maintain a challenge to the search. While the extent to which an employee may challenge a search of business premises generally is nuanced, courts agree that an employee may contest the search of his private office. See, e.g., Mancusi v. DeForte, 392 U.S. 364, 369, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968) (“It has long been settled that one has standing to object to a search of his office.”); Chuang, 897 F.2d at 649 (“It is well-settled that a corporate officer or employee in certain circumstances may assert a reasonable expectation of privacy in his corporate office.”); Kazarian, 2012 U.S. Dist. LEXIS 70050, 2012 WL 1810214, at *18 (“There is no dispute here that [defendant] has standing to challenge the search of his residence and office.”).

Although the Government contends that Mendlowitz has no legitimate expectation of privacy in the contents of the computers from his desk because CPS had a policy notifying employees that such contents and communications are not private, (Gov. Mem. 16), I find the cases cited by the government in support of that position are (1) not binding on me, (2) distinguishable, and/or (3) inapposite under the circumstances presented in this case. See United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (pertaining to warrantless search conducted by employer); United States v. Nordlicht, No. 16-cr-00640 (BMC), 2018 U.S. Dist. LEXIS 17630, 2018 WL 705548, at *4 (E.D.N.Y. Feb. 2, 2018) (finding lack of expectation of privacy based on communication policy in employee handbook in case brought by employees as opposed to co-owner, president, or CEO); Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548, 560-61 (S.D.N.Y. 2008) (ruling in a civil trademark infringement case that employer’s access of employee’s personal e-mails was unauthorized); Williams v. Rosenblatt Sec. Inc., 136 F. Supp. 3d 593, 607 (S.D.N.Y. 2015) (concluding in a civil whistleblower matter that employer’s access of terminated employee’s emails was not statutorily improper); cf. Leventhal v. Knapek, 266 F.3d 64, 74-75 (2d Cir. 2001) (holding that employee had reasonable expectation of privacy in the contents of his own office computer where there was no clear policy regarding regular monitoring of work computers but employer conducted periodic searches).

Accordingly, I find that Mendlowitz has demonstrated a sufficient privacy interest with regard to the materials seized from his office and computers but not with regard to the computers and materials seized from the offices of other employees or the CPS servers generally.

. . .

The Warrant in this case materially differs from those in the cases upon which Mendlowitz relies. In United States v. Wey, in finding that the warrant lacked sufficient particularity, the court expressly noted that the warrants there “fail[ed] to set forth the crimes under investigation” and failed to “cite criminal statutes.” 256 F. Supp. 3d 355, 384 (S.D.N.Y. 2017). Neither is true of the instant Search Warrant, which explicitly limited the search to evidence of a particular fraud scheme in violation of particular statutes. Likewise, in Zemlyansky, the court relied in part on the fact that the warrant failed to “inform[] the searching officer for which crimes the search [was] being undertaken …. The officers are thus directed to these categories without a single word of guidance regarding the type of criminal offense under investigation.” 945 F. Supp. 2d at 454; see also United States v. Vilar, No. S305CR621KMK, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *22 (S.D.N.Y. Apr. 4, 2007) (“[W]arrants are generally found to be insufficiently particular where nothing on the face of the warrant tells the searching officers for what crime the search is being undertaken.” (internal quotation marks omitted)). Therefore, I find that these cases are not instructive under the circumstances of this case.

Based on the foregoing, I find that the documents specified in Attachment B as incorporated by the Search Warrant were sufficiently particular to allow government agents to perform a discrete search for relevant evidence of the specific fraudulent scheme.

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