E.D.N.Y.: Govt’s failure to examine seized hard drives leads to suppression as “flagrant disregard” of warrant and Fourth Amendment

The government seized 61 hard drives to copy and copied four others then took its time analyzing them. The court finds the delay was unreasonable and was a “flagrant disregard” of the rights of the owner of the computers and target of the search and suppresses. United States v. Metter, 860 F. Supp. 2d 205 (E.D. N.Y. 2012):

This conclusion leaves the Court with a final determination to make: What is the appropriate remedy in this case? It is well-settled that “[g]overnment agents ‘flagrantly disregard’ the terms of a warrant so that wholesale suppression is required 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. Liu, 239 F. 3d 138, 140 (2d Cir. 2000) (quoting United States v. Matias, 836 F. 2d 744, 748 (2d Cir. 1988)). “The rationale for blanket suppression is that a search that greatly exceeds the bounds of a warrant and is not conducted in good faith is essentially indistinguishable from a general search.” Liu, 239 F. 3d at 141. “[T]o satisfy the first prong of the two-part test described above, the search conducted by government agents must actually resemble a general search.” Id. Thus, “the extreme remedy of blanket suppression should only be imposed in the most extraordinary of cases.” United States v. Foster, 100 F. 3d 846, 852 (10th Cir. 1996) (internal quotation marks omitted.)

The lack of good faith by the government can be inferred from its conduct in this case. In the affidavits in support of the search warrants issued in this case, the government promised to review the evidence seized offsite to determine whether any evidence fell outside the scope of the warrants. (See McGuire Home Aff. ¶ 58; Carrano Aff. ¶ 60; McGuire Email Aff. ¶ 130.) The government then failed to commence the review, despite repeated requests from defense counsel and directions from the Court to do so. In fact, the government seemed shocked that the Court would require such a review, and, as mentioned above, threatened to provide all of the evidence seized and imaged to each defendant in the case, without conducting any such review. (See 2/4/11 S/C Tr. 24-26, 29-30; 2/28/11 Gov’t Letter at 2.) The government’s own conduct and statements indicate that it had no intention of fulfilling its obligations as promised in the search warrants. Nor has the government presented any evidence or arguments to the effect that it failed to fulfill this obligation due to limited resources, such as it has argued in other cases.

The Court has not reached this conclusion lightly. However, the Court cannot, in the interest of justice and fairness, permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination. Accordingly, Metter’s motion to suppress is granted. This conclusion is limited to the electronic evidence seized and imaged pursuant to the Metter Home Search Warrant, Office Search Warrant, and Email Search Warrant and does not include the paper documents and currency seized pursuant to those warrants.

Udpate: I’ve looked a couple of times today to find the order, and I can’t without paying for it. Even then, I don’t have the capability of posting it as a pdf yet (well, never asked to learn). At any rate, here is a link from the USAO about the case which, of course, doesn’t mention this order. It does show, however, a status conference for this week as to Mr. Metter, and all the other defendants have apparently pled guilty. One of the letter briefs by the government appears here.