{"id":8777,"date":"2013-05-23T07:11:21","date_gmt":"2013-05-23T07:10:59","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-05-23T07:10:59","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=8777","title":{"rendered":"S.D.N.Y.: White collar records warrant failed particularity and good faith"},"content":{"rendered":"

Particularity and overbreadth in white collar crime: a rare granting of suppression in a no-fault insurance scheme search warrant. The particularity requirement protects important values. The good faith exception does not apply here. United States v. Zemlyansky<\/a>, 2013 U.S. Dist. LEXIS 71818 (S.D.N.Y. May 20, 2013) (Oetken, J.): <\/p>\n

<\/p>\n

In the Second Circuit, there is no settled formula for determining whether a warrant lacks particularity. Nonetheless, in a thoughtful and scholarly opinion, Judge Karas has noted “two factors that, above others, tend to define a warrant’s insufficient particularity.” United States v. Vilar, No. No. 05 Cr. 621, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *22 (S.D.N.Y. Apr. 4, 2007):<\/p>\n

First, warrants 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. Second, warrants will frequently lack particularity where they include a general, catch-all paragraph or provision, often one authorizing the seizure of any or all records of a particular type.<\/p><\/blockquote>\n

Id. (quotation marks, citations, and alterations omitted). Courts do not require that a defendant demonstrate both of these deficiencies; rather, one or the other will typically render a warrant unconstitutional. See George, 975 F.2d at 75-76 (holding that warrant lacked particularity because it does not alert the searching officers to the crimes at issue); United States v. Buck, 813 F.2d 588, 591 (2d Cir. 1987) (holding warrant lacked particularity because it contained catch-all provisions).<\/p>\n

The factors identified by Judge Karas are not exhaustive: lack of particularity may result from, or at least be suggested by, other circumstance-specific considerations. For example, “[i]n a number of out-of-circuit decisions, courts have found warrants for the seizure of records constitutionally deficient where they imposed too wide a time frame or failed to include one altogether.” United States v. Cohan, 628 F. Supp. 2d 355, 365-66 (E.D.N.Y. 2009) (citations omitted). While the Second Circuit has not yet definitively addressed the necessity of temporal limitations, “[a]mongst the district courts in this circuit … there is general agreement that a time frame is relevant, [though] there is no apparent consensus as to when one is required.” Id. at 366 (collecting cases) (emphasis in original).<\/p>\n

1. Limitations by Crime<\/p>\n

Nothing on the face of the Tri-State warrant informs the searching officer for which crimes the search is being undertaken. Accord United States v. Hickey, 16 F. Supp. 2d 233, 239 (E.D.N.Y. 1998) (warrants lacked particularity where “none identified the nature of the suspected wrongdoing triggering the searches”), motion for reconsideration granted on other grounds, 48 F. Supp. 2d 214 (E.D.N.Y. 1998); Roberts v. United States, 656 F. Supp. 929, 935 (S.D.N.Y. 1987) (warrant containing “no restriction to any specific wrongful transaction to which documents were related” lacked sufficient particularity), rev’d on other grounds, 852 F.2d 671 (2d Cir. 1988).<\/p>\n

. . .<\/p>\n

2. The Scope of the Categories to Be Searched and Seized<\/p>\n

The Tri-State warrant contains excessively broad categories of items to be searched for and seized, and thereby permits a searching officer to rummage through and seize nearly any conceivable paper and electronic document at Tri-State. This failing provides an independent basis for deeming the warrant deficient. See Buck, 813 F.2d at 591 (finding impermissibly broad a warrant rife with “general boilerplate terms, without either explicit or implicit limitation on the scope of the search”); see also Wheeler v. City of Lansing, 660 F.3d 931, 941 (6th Cir. 2011) (in the context of a search of a house for stolen goods, categories in a warrant are overbroad where they “provid[e] no basis to distinguish the stolen items from [the defendant’s] own personal property”); Hernandez, 2010 U.S. Dist. LEXIS 719, 2010 WL 26544, at *10 (the categories of items to be seized from a business lack particularity where they “could have encompassed most all of the business records on the premises”).<\/p>\n

The Tri-State warrant allows for the seizure of categories of materials that other courts have recognized to be impermissibly broad. …<\/p>\n

. . .<\/p>\n

At bottom, missing from all of these categories\u2014and from the warrant in general\u2014are any instructions to the officers to search for and seize records related to the five modality clinics at the center of the alleged conspiracy in question, related to particular suspects in the case, limited to the time period of the suspected conspiracy, related to the crimes alleged, or any other limits.<\/p>\n

. . .<\/p>\n

3. Failure to Temporally Limit the Warrant<\/p>\n

Also missing from the Tri-State warrant is any temporal limitation on the items to be searched. See Hernandez, 2010 U.S. Dist. LEXIS 719, 2010 WL 26544, at *11 (noting that a “temporal limitation” is an “indic[ium] of particularity” (citing United States v. Capital Grp., Inc., 211 F.R.D. 31, 58 (D. Conn. 2002)). As Judge Hall has observed, “[a] warrant’s failure to include a time limitation, where such limiting information is available and the warrant is otherwise wide-ranging, may render it insufficiently particular.” United States v. Costin, No. 5 Cr. 38, 2006 U.S. Dist. LEXIS 52051, 2006 WL 2522377, at *12 (D. Conn. July 31, 2006) (collecting cases); accord United States v. Abrams, 615 F.2d 541, 545 (1st Cir. 1980) (holding, in a case concerning the search of billing records at doctors’ offices for evidence of Medicare and Medicaid fraud, that “[a] time frame should also have been incorporated into the warrant”). Although “[t]he complexity and duration of the alleged criminal activities” of this case may render temporal limitation “less significant,” Hernandez, 2010 U.S. Dist. LEXIS 719, 2010 WL 26544, at *11, the absence of such a limit reinforces the Court’s conclusion that the Tri-State warrant functioned as a general warrant. See Vilar, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *23 (noting that the “patent lack of particularity is only compounded by the absence of any date restriction on the items to be seized”).<\/p>\n

4. Confusing Provisions in the Tri-State Warrant<\/p>\n

An additional basis for concluding that the Tri-State warrant lacked particularity rests in the confusing relationship between Item 9 and the remainder of the warrant. Specifically, Item 9 indicates that law enforcement personnel may search for and seize broad categories of electronic equipment and related material “to search for the items described above that may be maintained in electronic media.” The clear suggestion is that the search of electronic media is somehow limited by Item 9 and its various subsection\u2014even though it is doubtful that the combination of those broad subsections actually imposes any limit. But then the warrant also separately allows for the search of “[c]omputers” and “[t]humb drives,” categories which are not limited by Item 9’s plain language at all and to which it would be nonsensical to apply Item 9.<\/p>\n

. . .<\/p>\n

5. The All-Records Exception<\/p>\n

Under certain, limited circumstances, a warrant lacking in particularity can be saved by the so-called “all records exception.” “Under that exception, all records of a business may be seized if there is probable cause to believe that the entire operation is permeated with fraud.” Hickey, 16 F. Supp. 2d at 240 (collecting cases); … <\/p>\n

To trigger the all records exception, “it is not necessary that the affidavit supporting the search warrant set forth specific factual evidence demonstrating that every part of the enterprise in question is engaged in fraud.” United States v. Burke, 718 F. Supp. 1130, 1139 (S.D.N.Y. 1989). “Rather, the affidavit need contain only sufficient factual evidence of fraudulent activity from which a magistrate could infer that those activities are just ‘the tip of the iceberg.'” Id. at 1139-40 (citation omitted). … <\/p>\n

In cases where the all records exception has been applied, the affidavit submitted in support of the warrant contained detailed information that would provide reason to believe that all or nearly all of the business under investigation was illegal. …<\/p>\n

C. Good Faith
\n. . .
\n2. Good Faith and Lack of Particularity
\n. . .
\nb. Culpability and Deterrence<\/p>\n

Even though its agents violated clearly established law with which they are presumed to be familiar, the Government could still avail itself of the good faith exception by showing that the agents’ conduct was insufficiently culpable and did not implicate deterrence concerns. In Rosa, an unusual confluence of mitigating factors supported a finding of good faith. Here, by contrast, the violation did not result from isolated negligence and does call for deterrence.<\/p>\n

c. Conclusion: Suppression is Warranted<\/p>\n

Accordingly, the good faith exception cannot save the Tri-State warrant. “The Fourth Amendment’s requirements regarding search warrants are not ‘formalities.'” Voustianiouk, 685 F.3d at 210 (quoting McDonald, 335 U.S. at 455). Because the Government’s agents violated the Fourth Amendment and do not fall within the shield of the good faith exception, suppression of evidence from the Tri-State search is warranted.<\/p>\n

The Court will determine the appropriate scope of this suppression remedy following further submissions by the parties and a subsequent hearing.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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