W.D. N.Y.: Violating search protocol does not require suppression under Herring

Government agents violated the search protocol by not timely searching the defendant’s computers, but the court does not find that the search should be suppressed as a result because there was no “but for” causation. United States v. Widner, 2010 U.S. Dist. LEXIS 125920 (W.D. N.Y. August 20, 2010), adopted 2010 U.S. Dist. LEXIS 125942 (W.D. N.Y. November 30, 2010):

Applying the above-referenced authority to the Widner warrant, I find that the failure to conduct an onsite preview of the material seized did not render the warrant itself insufficiently particular or otherwise invalid. The defense contends that “blanket suppression” of all the evidence is nonetheless justified because the warrant was executed in “flagrant disregard” of the warrant’s terms. See United States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988) (“when items outside the scope of a valid warrant are seized, the normal remedy is suppression and return of those items[, …] the drastic remedy of the suppression of all evidence is not justified unless those executing the warrant acted in flagrant disregard of the warrant’s terms”) (internal quotation omitted; emphasis in original); United States v. Defreitas, 701 F. Supp. 2d 297, 2010 WL 1223244, *4 (E.D.N.Y. 2010). Government agents act in flagrant disregard of a warrant justifying “wholesale suppression … only when (1) they effect a widespread seizure of items that were not within the scope of the warrant, and (2) do not act in good faith.” United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir. 2000) (internal citations and quotations omitted), cert. denied, 534 U.S. 816, 122 S. Ct. 44, 151 L. Ed. 2d 16 (2001). The first prong of this test requires proof that the search conducted actually resembled a “general search,” which has been described as a “wide-ranging exploratory search []” or an “indiscriminate rummaging,” and “ha[s] long been deemed to violate fundamental rights.” Id. at 140. In the absence of such evidence, the Court need not address whether the agents acted in bad faith in executing the search. Id. at 142 (declining to reach issue of whether search was conducted in good faith where first prong of test was not met).

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The one final question is whether the search team’s non-compliance with a court-ordered directive in the warrant itself justifies suppression as a sanction. In my opinion, the Supreme Court’s decision in Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006), counsels against that result. There, the agents executing a search warrant failed to comply with the Fourth Amendment’s “knock and announce” provision. The Court refused to order suppression, noting that it is a “last resort, not our first impulse” because of its “substantial social costs.” Hudson v. Michigan, 547 U.S. at 591. The Court reasoned that suppression was too drastic a remedy because the agents would have discovered the incriminating evidence “[w]hether the preliminary misstep had occurred or not.” Id. at 592 (emphasis in original). Accord …. The record here makes clear that the agents would have discovered the child pornography whether the forensic preview had been conducted onsite, as directed, or offsite, as in fact occurred. Thus, the failure to conduct the forensic preview at the residence cannot be considered the “but-for cause of obtaining the evidence,” making suppression an inappropriate sanction. Hudson, 547 U.S. at 592 (“but-for causality is … a necessary … condition of suppression”); Acosta, 502 F.3d at 58.