E.D.N.Y.: Attenuation doctrine applies to this SEC interview; in dicta, no 4A violation

Even assuming the exclusionary rule applies to the SEC in this case, the attenuation doctrine applies. There is no direct or indirect evidence derived from the SEC’s action. As to the direct, “The Court finds that, even if the exclusionary rule applies here, which is highly unlikely for several reasons,⁷ there is no tainted evidence, direct or indirect, at issue here, and the attenuation doctrine severs any link between the May 2018 interview and the evidence the SEC seeks to present at the Show Cause Hearing. [¶] As an initial matter, the Court finds that there is no direct evidence at issue here. It is undisputed that Defendant Xia did not produce any documents to the Examiners on the day of the May 2018 interview. … Defendants’ only argument regarding direct evidence is that ‘[t]he evidence gathered by the Examiners directly’ during the interview ‘includes Xia’s statements made during the interview.’ … Defendants do not explain what else they allege to be ‘included’ as direct evidence.” SEC v. Xia, 2022 U.S. Dist. LEXIS 25064 (E.D.N.Y. Feb. 11, 2022). As to note 7:

7. The Court notes that, even accepting Defendant Xia’s description of the May 21, 2018 events, Defendant Xia likely would fail to meet his initial burden of establishing that the Examiners’ visit of the FFG’s office and their interview of him qualify as an unreasonable search under the Fourth Amendment. See United States v. Herron, 18 F. Supp. 3d 214, 221 (E.D.N.Y. 2014) (citing United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980), cert. denied, 450 U.S. 917 (1981)) (finding that the “initial burden of establishing that a government official acting without a warrant subjected him to a search or seizure” rests with the defendant); see also United States v. Corbett, No. 20-CR-213 (KAM), 2021 WL 4480626, at *1 (E.D.N.Y. Sept. 30, 2021) (“When a defendant moves to suppress evidence that he contends derives from an illegal search, he ‘bears the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.'” (quoting United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991))). Even assuming, arguendo, that a search took place, the Court would be hard-pressed to find that the search was unlawful and involuntary, and that the exclusionary rule would even apply in this case. However, the Court does not reach these issues because the attenuation doctrine alone defeats Defendants’ Fourth Amendment challenge.