{"id":4956,"date":"2010-12-02T16:54:51","date_gmt":"2010-12-02T16:54:51","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-12-02T16:54:51","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4956","title":{"rendered":"W.D. N.Y.: Violating search protocol does not require suppression under Herring<\/em>"},"content":{"rendered":"

Government agents violated the search protocol by not timely searching the defendant\u2019s computers, but the court does not find that the search should be suppressed as a result because there was no \u201cbut for\u201d 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):<\/p>\n

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 \u201cblanket suppression\u201d of all the evidence is nonetheless justified because the warrant was executed in \u201cflagrant disregard\u201d of the warrant\u2019s terms. See United States v. Matias<\/a>, 836 F.2d 744, 747 (2d Cir. 1988) (\u201cwhen 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\u2019s terms\u201d) (internal quotation omitted; emphasis in original); United States v. Defreitas<\/a>, 701 F. Supp. 2d 297, 2010 WL 1223244, *4 (E.D.N.Y. 2010). Government agents act in flagrant disregard of a warrant justifying \u201cwholesale suppression \u2026 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.\u201d United States v. Shi Yan Liu<\/a>, 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 \u201cgeneral search,\u201d which has been described as a \u201cwide-ranging exploratory search []\u201d or an \u201cindiscriminate rummaging,\u201d and \u201cha[s] long been deemed to violate fundamental rights.\u201d 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).<\/p>\n

. . .<\/p>\n

The one final question is whether the search team\u2019s non-compliance with a court-ordered directive in the warrant itself justifies suppression as a sanction. In my opinion, the Supreme Court\u2019s decision in Hudson v. Michigan<\/a>, 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\u2019s \u201cknock and announce\u201d provision. The Court refused to order suppression, noting that it is a \u201clast resort, not our first impulse\u201d because of its \u201csubstantial social costs.\u201d Hudson v. Michigan<\/a>, 547 U.S. at 591. The Court reasoned that suppression was too drastic a remedy because the agents would have discovered the incriminating evidence \u201c[w]hether the preliminary misstep had occurred or not.\u201d 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 \u201cbut-for cause of obtaining the evidence,\u201d making suppression an inappropriate sanction. Hudson, 547 U.S. at 592 (\u201cbut-for causality is … a necessary … condition of suppression\u201d); Acosta, 502 F.3d at 58.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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