{"id":923,"date":"2007-04-15T08:54:34","date_gmt":"2007-04-14T17:05:53","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-04-14T17:05:53","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=923","title":{"rendered":"Important S.D.N.Y. computer search case: Securities fraud warrant failed particularity because of its sweeping overbreadth, and no GFE, but the invalid part is severed; the court also discusses the application of the Fourth Amendment to electronic media"},"content":{"rendered":"

In the Amerindo securities fraud case, the search warrant was way overbroad ($25M in securities were at issue in a company that managed $1.2B), and all the records of the company fell within the warrant. Based on 2d Cir. authority, no reasonable officer could have relied upon the search warrant because of its defective overbreadth, and the good faith exception did not save it. The court did, however, sever the evidence seized under the invalid portions from the valid portions. United States v. Vilar, 2007 U.S. Dist. LEXIS 26993 (S.D. N.Y. April 4, 2007) (the S.D.N.Y.’s website has a link for special interest cases<\/a>, but this case was not there when this was posted here; also note that this was not received by Lexis until the day before it was posted here):<\/p>\n

Here, the challenged Warrant suffers from both of these deficiencies. To begin, nowhere does the Warrant indicate what specific acts of wrongdoing are being investigated. Paragraph 16 of the Warrant Rider contains an oblique reference to “participants in the fraud schemes,” but this would have been unhelpful to the Inspectors executing the search, as the Warrant does not identify those participants or explain the referenced fraud schemes, nor does it identify the particular transactions and illicit activities upon which the Warrant was founded. Moreover, this omission cannot be cured by reference to the supporting warrant application. The Second Circuit has held that a “sufficiently specific affidavit will not itself cure an overbroad warrant … [unless] it is incorporated by reference in the warrant itself and attached to it,” neither of which occurred here. George,<\/em> 975 F.2d at 76; see also Groh<\/em>, 540 U.S. at 557-58, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (refusing to consider warrant application where the “warrant did not incorporate [the application] by reference, nor did . . . the application . . . accompany the warrant”); cf. United States v. Walker, <\/em>No. 06 Crim. 48E, 2006 WL 3150977, at *4 (W.D.N.Y. Nov. 1, 2006) (reading warrant as including facts set forth in affidavit where warrant stated, “see attached Affidavit as to of [sic] Items to be Seized, all of which are fruits, evidence and instrumentalities of violations of 18 U.S.C. \u00a7 922(g)(1) all of which are more fully described in the affidavit filed in support of this warrant which is incorporated herein by reference” (emphasis added)).<\/p>\n

The Warrant also contained a general, catch-all provision. As noted, paragraph one of the Rider authorizes the seizure of all “[c]orporate records” concerning any of the Amerindo entities, including Amerindo Cayman. Although the Warrant explains that this catch-all provision “includes” items such as “records concerning the formation of … the Amerindo entities,” “client lists, client files, investment brochures,” and “correspondence,” the Warrant explicitly states that the seizure power is “not limited to” such items. Indeed, nowhere is this catch-all provision in any way circumscribed, a problem that is amplified by the fact that other paragraphs in the Warrant do contain limitations — for example, to documents related to the fraud schemes (paragraph 16) or to specific individuals (paragraph 6) — which would indicate to a reasonable officer that paragraph one, lacking such explicit restrictions, is therefore unbounded. Moreover, this patent lack of particularity is only compounded by the absence of any date restriction on the items to be seized. See Roberts,<\/em> 656 F. Supp. at 935 (noting the absence of a “limit as to the dates of the documents to be seized” in determining lack of particularity).<\/p>\n

At bottom, the Warrant, most notably in the first paragraph of the Rider, provides for the seizure of a virtually unlimited body of documents. As such, it left unacceptably broad discretion to the officers executing the search. As the Roberts<\/em> court held, “[w]ith no limit as to the owners of the documents, no limit as to the dates of the documents to be seized, and no restriction to any specific wrongful transaction to which the documents were related, the warrant in this case authorized a general, exploratory rummaging in a person’s belongings.” Roberts,<\/em> 656 F. Supp. at 935 (internal citations and quotations omitted). The Court therefore finds that portions of the Warrant violated the particularity requirement of the Fourth Amendment.<\/p>\n

3. Good Faith<\/em><\/p>\n

A finding that the Warrant was invalid does not end the inquiry. If the executing officers conducted the search “in good faith and in objectively reasonable reliance on the warrant,” the evidence produced by that search will not be suppressed. Buck,<\/em> 813 F.2d at 592. This so-called “good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon,<\/em> 468 U.S. at 922 n.23. The “standard of reasonableness … is an objective one, … [that] requires officers to have a reasonable knowledge of what the law prohibits.” George<\/em>, 975 F.2d at 77 (quoting Leon<\/em>, 468 U.S. at 919-20). In assessing the good-faith exception, “[t]he burden is on the government to demonstrate the objective reasonableness of the officers’ good-faith reliance.” United States v. Santa<\/em>, 180 F.3d 20, 25 (2d Cir. 1999); accord George<\/em>, 975 F.2d at 77.<\/p>\n

. . .<\/p>\n

In Buck<\/em>, the Second Circuit addressed the application of the good-faith exception under circumstances similar to those here. There, the court invalidated a warrant for failure to meet the Fourth Amendment’s particularity requirement. 813 F.2d at 591-92. Unlike the Warrant here, the warrant in Buck included a description of the crime; however, it also authorized the broad seizure of “any papers, things or property of any kind relating to the previously described crime.” Id<\/em>. at 590. The Second Circuit held that such a warrant “left it entirely to the discretion of the officials conducting the search to decide what items were to be seized, and thus was not permissible under the Fourth Amendment.” Id.<\/em> at 592. The Buck<\/em> court then addressed the good-faith exception. Reasoning that the executing officers could not have “anticipate[d the court’s] holding … that the particularity clause of the Fourth Amendment prohibits the use of a catch-all description in a search warrant,” the court applied the good-faith exception and did not suppress the evidence. Id.<\/em> at 593. Relevant to the pending motion, however, the Buck court added the following words of guidance: “Of course, our decision today means that, with respect to searches conducted hereafter, police officers may no longer invoke the reasonable-reliance exception to the exclusionary rule when they attempt to introduce as evidence the fruits of searches undertaken on the basis of warrants containing only a catch-all description of the property to be seized.” Id.<\/em> at 593 n.2.<\/p>\n

. . . <\/p>\n

5. Severance<\/p>\n

As a last line of defense, the Government argues that even if portions of the Warrant are unconstitutionally broad or otherwise insufficiently particularized, and even if the good-faith exception does not apply, the Court should, at most, sever the invalid portions of the Warrant and permit it to keep items seized pursuant to the valid portions. This the Court will do.<\/p><\/blockquote>\n

The Court also helpfully took it upon itself to explain the application of traditional Fourth Amendment analysis to electronic media:<\/p>\n

A number of courts and academic commentators have suggested that searches of computers raise unique Fourth Amendment issues. See, e.g., United States v. Carey, 172 F.3d 1268 (10th Cir. 1999); United States v. Tamura, 694 F.2d 591 (9th Cir. 1982); [*112] Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005). For example, a single computer is capable of storing immense amounts of information: “Computer hard drives sold in 2005 generally have storage capacities of about eighty gigabytes, roughly the equivalent to forty million pages of text — about the amount of information contained in the books on one floor of a typical academic library.” Kerr, supra<\/em>, at 542. Computers also often contain significant “intermingling” of relevant documents with “documents that the government has no probable cause to seize.” In the Matter of the Search of: 3817 W. West End, First Floor Chicago, Illinois 60621<\/em>, 321 F. Supp. 2d 953, 958 (N.D. Ill. 2004); see also <\/em>Ralph Winick, Searches and Seizures of Computers and Computer Data,<\/em> 8 Harv. J.L. & Tech. 75, 104 (1994). Increasingly, even office computers are used as “postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more,” Kerr, supra<\/em>, at 569, a phenomenon that is only compounded in a networked world, where a “single physical storage device can store the private files of thousands of different users.” Id.<\/em> at 556.<\/p>\n

Another potential complication regarding computer searches is the fact that often, because of time restraints and insurmountable technical limitations, such searches cannot be carried out at the time the warrant is executed at the premises. See United States v. Hill,<\/em> 459 F.3d 966, 974-75 (9th Cir. 2006) (observing that “there is a serious risk that the police might damage the storage medium or compromise the integrity of the evidence by attempting to access the data at the scene,” and that taking the time needed to search a computer at the scene “would not only impose a significant and unjustified burden on police resources, it would also make the search more intrusive”). Instead, “it is frequently the case with computers that the normal sequence of ‘search’ and then selective ‘seizure’ is turned on its head,” as computer hardware is seized from a suspect’s premises before its content is known and then searched at a later time. 3817 W. West End,<\/em> 321 F. Supp. 2d at 958; see also Hill,<\/em> 459 F.3d at 974 (holding that “the police were not required to bring with them equipment capable of reading computer storage media and an officer competent to read it”). Moreover, as was the case here, computer searches are often not executed on a seized computer itself, but rather on a government computer that contains a “mirror-image” copy of a target machine, copies that can generally be made without exposing the underlying data to the eyes of government agents. See Kerr, supra,<\/em> at 560. Thus, the fear of some is that law enforcement officers, unencumbered by the type of time pressures attendant to doing a search of a physical premises, might be tempted to rummage through a computer’s files well beyond the scope of a warrant. See id.<\/em> at 571 (“Many computers may contain a wealth of evidence of low-level crimes, and probable cause to believe a person has engaged in a minor offense may justify an exhaustive search of his hard drive that will expose a great deal to government observation.”).<\/p>\n

On the other hand, the computer has become the modern criminal’s best friend. It is used to communicate to cohorts, ensnare victims, and generally to prepare and orchestrate criminal conduct. The computer facilitates the terrorist organization’s ability to train its members, spread propaganda and case its targets, just as it helps the identity thief locate his victims, the pornographer to collect and view child pornography, and the fraudster to generate fake documents. And, it is precisely because computer files can be intermingled and encrypted that the computer is a useful criminal tool. Nefarious documents can be given innocuous names, or can be manipulated, hidden or deleted with great ease. See Hill,<\/em> 459 F.3d at 978 (“Criminals will do all they can to conceal contraband, including the simple expedient of changing the names and extensions of files to disguise their content from the casual observer.”); United States v. Hunter,<\/em> 13 F. Supp. 2d 574, 583 (D. Vt. 1998) (“Computer records are extremely susceptible to tampering, hiding, or destruction, whether deliberate or inadvertent.”). It therefore is unsurprising that some of the most important evidence of criminal conduct is often found buried in computers. As a result, it also should not be surprising that a person who uses a computer, or any electronic device, as an instrumentality of crime might discover that a magistrate judge would find probable cause to search that computer, just as it should not shock the user of a telephone that a judge would approve interceptions of calls over that telephone or the home owner that a judge would approve a search throughout a house believed to contain evidence of a crime. See United States v. Gray<\/em>, 78 F. Supp. 2d 524, 528 (E.D. Va. 1999) (noting that “agents authorized by warrant to search a home or office for documents containing certain specified information are entitled to examine all files located at the site to look for the specified information”).<\/p>\n

The Second Circuit has yet to comprehensively address the unique issues raised by computer searches, and few district courts in this circuit have had occasion to address the topic. Nevertheless, some guiding precepts have emerged in this circuit and others. As an initial matter, although searches of computers present unique constitutional challenges, the ultimate Fourth Amendment standard is the same for both computer and hard-copy searches: reasonableness. See Hill,<\/em> 459 F.3d at 974 (“As always under the Fourth Amendment, the standard is reasonableness.”). At bottom, then, there is neither a heightened nor a reduced level of protection for information stored on computers, as there is “no justification for favoring those who are capable of storing their records on computer over those who keep hard copies of their records.” Hunter,<\/em> 13 F. Supp. 2d at 584; accord Gray,<\/em> 78 F. Supp. 2d at 529.<\/p>\n

The cases and commentary also draw a distinction between the electronic storage device itself and the information which that device contains. Thus, when the government seeks to seize the information stored on a computer, as opposed to the computer itself, that underlying information must be identified with particularity and its seizure independently supported by probable cause. See Carey,<\/em> 172 F.3d at 1275 (“Officers [should] specify in a warrant which type of files are sought.”); United States v. Riccardi,<\/em> 405 F.3d 852, 862-63 (10th Cir. 2005) (holding that warrant which “permitted the officers to search for anything — from child pornography to tax returns to private correspondence,” was “precisely the kind of wide-ranging exploratory search that the Framers intended to prohibit” (internal quotations omitted)); Hunter,<\/em> 13 F. Supp. 2d at 584-85 (invalidating a warrant for failure to identify with particularity the underlying information to be seized); In re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993,<\/em> 846 F. Supp. 11, 12 (S.D.N.Y. 1994) (holding, in the context of a grand jury subpoena, that specificity is required with respect to the categories of information requested, not merely the storage devices). This is consistent with the Government’s own published practices, as set forth in a 2002 manual issued by the United States Department of Justice, Criminal Division. See Computer Crime and Intellectual Prop. Section, Crim. Div., U.S. Dep’t of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations<\/em> (2002), available at www.cybercrime.gov\/s&smanual2002.htm, (hereinafter “DOJ Manual”). The DOJ Manual instructs agents that “[i]f the probable cause relates only to the information … the warrant should describe the information, rather than the physical storage devices which happen to contain it.” Id.<\/em> at 42.<\/p>\n

This is not a new rule, but merely an application of the traditional Fourth Amendment requirement that the Government establish that there is probable cause that the materials sought will contain evidence of crime, and then specify with reasonable particularity the materials to be seized. See United States v. Brooks,<\/em> 427 F.3d 1246, 1253 (10th Cir. 2005) (upholding warrant “that authorized officers to search through computer files for particular items specifically related to child pornography”). In meeting this burden, the Government obviously will need to persuade an issuing magistrate judge that there is reason to believe that the target computer was used to facilitate the crime, or otherwise will contain evidence of that crime. See Hill,<\/em> 459 F.3d at 975 (“Although computer technology may in theory justify blanket seizures for the reasons discussed above, the government must still demonstrate to the magistrate factually why such a broad search and seizure authority is reasonable in the case at hand.”). However, this does not require the Government to establish that a majority of the computer files are related to the suspected criminal conduct, as long as what is to be seized is set forth with sufficient particularity. See Gray,<\/em> 78 F. Supp. 2d at 528; Hunter,<\/em> 13 F. Supp. 2d at 583. Indeed, given all the operating software and other basic files stored on most computers, it should not be expected that most files will be suspicious. See Hill,<\/em> 459 F.3d at 974 (noting that “computers in common use run a variety of operating systems — various versions of Windows, Mac OS and Linux, to name only the most common”).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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