Defendant had a reasonable expectation of privacy in his own work computer, but not on what was on the company server. Because the crimes under investigation were listed in the search warrant, the warrant wasn’t general. United States v. Mendlowitz, 2019 U.S. Dist. LEXIS 33664 (S.D.N.Y. Mar. 4, 2019):
With regard to the search and seizure of the computers from Mendlowitz’s own workspace, I find that Mendlowitz has established a sufficient privacy interest to maintain a challenge to the search. While the extent to which an employee may challenge a search of business premises generally is nuanced, courts agree that an employee may contest the search of his private office. See, e.g., Mancusi v. DeForte, 392 U.S. 364, 369, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968) (“It has long been settled that one has standing to object to a search of his office.”); Chuang, 897 F.2d at 649 (“It is well-settled that a corporate officer or employee in certain circumstances may assert a reasonable expectation of privacy in his corporate office.”); Kazarian, 2012 U.S. Dist. LEXIS 70050, 2012 WL 1810214, at *18 (“There is no dispute here that [defendant] has standing to challenge the search of his residence and office.”).
Although the Government contends that Mendlowitz has no legitimate expectation of privacy in the contents of the computers from his desk because CPS had a policy notifying employees that such contents and communications are not private, (Gov. Mem. 16), I find the cases cited by the government in support of that position are (1) not binding on me, (2) distinguishable, and/or (3) inapposite under the circumstances presented in this case. See United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (pertaining to warrantless search conducted by employer); United States v. Nordlicht, No. 16-cr-00640 (BMC), 2018 U.S. Dist. LEXIS 17630, 2018 WL 705548, at *4 (E.D.N.Y. Feb. 2, 2018) (finding lack of expectation of privacy based on communication policy in employee handbook in case brought by employees as opposed to co-owner, president, or CEO); Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548, 560-61 (S.D.N.Y. 2008) (ruling in a civil trademark infringement case that employer’s access of employee’s personal e-mails was unauthorized); Williams v. Rosenblatt Sec. Inc., 136 F. Supp. 3d 593, 607 (S.D.N.Y. 2015) (concluding in a civil whistleblower matter that employer’s access of terminated employee’s emails was not statutorily improper); cf. Leventhal v. Knapek, 266 F.3d 64, 74-75 (2d Cir. 2001) (holding that employee had reasonable expectation of privacy in the contents of his own office computer where there was no clear policy regarding regular monitoring of work computers but employer conducted periodic searches).
Accordingly, I find that Mendlowitz has demonstrated a sufficient privacy interest with regard to the materials seized from his office and computers but not with regard to the computers and materials seized from the offices of other employees or the CPS servers generally.
. . .
The Warrant in this case materially differs from those in the cases upon which Mendlowitz relies. In United States v. Wey, in finding that the warrant lacked sufficient particularity, the court expressly noted that the warrants there “fail[ed] to set forth the crimes under investigation” and failed to “cite criminal statutes.” 256 F. Supp. 3d 355, 384 (S.D.N.Y. 2017). Neither is true of the instant Search Warrant, which explicitly limited the search to evidence of a particular fraud scheme in violation of particular statutes. Likewise, in Zemlyansky, the court relied in part on the fact that the warrant failed to “inform[] the searching officer for which crimes the search [was] being undertaken …. The officers are thus directed to these categories without a single word of guidance regarding the type of criminal offense under investigation.” 945 F. Supp. 2d at 454; see also United States v. Vilar, No. S305CR621KMK, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *22 (S.D.N.Y. Apr. 4, 2007) (“[W]arrants 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.” (internal quotation marks omitted)). Therefore, I find that these cases are not instructive under the circumstances of this case.
Based on the foregoing, I find that the documents specified in Attachment B as incorporated by the Search Warrant were sufficiently particular to allow government agents to perform a discrete search for relevant evidence of the specific fraudulent scheme.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)