S.D.N.Y. follows majority and holds that a cell phone search starts with “seizure of the media”

The government had possession of defendant’s cell phone and technically started the search within the time limits of Rule 41(e)(2)(B) by “seizure of the media.” The extraction report followed up months later. United States v. Estime, 2020 U.S. Dist. LEXIS 191242 (S.D. N.Y. Oct. 14, 2020):

While it may be best practice for the Government to take initial measures to effectuate the copying and review of ESI—such as by sending a storage medium to the relevant off-site facility for copying and review—within 14-days of the issuance of a search warrant, there is no language in Rule 41(e)(2)(B) that makes this mandatory. Accordingly, this Court agrees with the majority of courts that, under Rule 41(e)(2)(B), a search warrant for ESI is executed through “the seizure … of the media” which is accomplished when the physical storage device is in the custody of the government.

Here, it is uncontested that the Government had physical possession of Defendant’s cellphones on August 8, 2019. (Def. Mem. 14; Gov. Opp. 14.) Pursuant to Rule 41(e)(2)(B) and the interpretation of most courts, the Government effectively executed the search warrant at that time. Thus, the Government’s execution of the search warrant occurred before September 4, 2019, and was timely.

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