S.D.N.Y.: Destruction of surveillance cameras before search not a “seizure” or due process violation

The government destroyed defendant’s surveillance cameras as a part of the search just before it started. He asserts a Fourth Amendment and Fifth Amendment due process claim as a result. The court finds no authority that disabling the cameras was a seizure. It also finds no due process violation from preventing creation of evidence that might not prove anything. United States v. Butt, 2019 U.S. Dist. LEXIS 20056 (S.D. N.Y. Feb. 6, 2019):

Butt has not proven that the search was conducted unreasonably or that it exceeded the scope of the search warrant. While it is true that the search warrant did not explicitly endorse the seizure of Butt’s camera surveillance system, the Court finds it inaccurate to describe the Government’s disabling of cameras as a “seizure” when the Government did not remove them, possess them, retain custody over them, and disabled them as a procedural safeguard in the context of executing a warrant that was supported by probable cause. Notably, Butt has not provided any case law to support his position and there is authority that goes against his position. Cf. United States v. Yevakpor, 419 F. Supp. 2d 242, 250 (N.D.N.Y. 2006) (finding the Government’s clear custody of existing records an important factor in the court’s assessment of the due process violation.)

Moreover, even if the Court deemed the disabling to be a temporary seizure, there is a distinction between preventing the creation of potentially exculpatory evidence and the intentional destruction or manipulation of existing evidence. This distinction is one that Defendant downplays, and that the Government overemphasizes. For example, both parties discuss United States v. Yevakpor, 419 F. Supp. 2d 242, 246 (N.D.N.Y. 2006), a case that involved law enforcement’s deliberate destruction of portions of a continuous recording of the defendant. There, the Court ultimately found: a) that it was incumbent on the government to not destroy evidence that it had in its custody and b) that there was a due process violation regardless of the Government’s good or bad faith. 419 F. Supp. 2d at 247-49 (“courts have determined that if the Government fails to disclose or preserve material that could be exculpatory in nature, or favorable to an accused when material to guilt or punishment, good or bad faith of the prosecution is no longer at issue, but rather a due process violation is at issue.”)

Importantly, however, there were several important factors that weighed in favor of finding a due process violation in Yevakpor that are not present here. …