District Court Suppresses Evidence After Government Obtained Warrant, Made Copies and Returned the Original Computers, But Did Not Search (Or Finish Searching) the Copies In a Reasonable Period of Time

The case is United States v. Metter, — F.Supp.2d —, 2012 WL 1744251 (E.D.N.Y. May 17, 2012), by District Judge Dora Irizarry. The government obtained three different warrants to search and seize computers in a massive securities fraud action. One warant was to seize computers from a business; another warrant was to seize computers from a home; and a third was to obtain the contents of an e-maul account from an ISP. The government executed the warrants, and seized 61 computers from the business, 4 computers from the home, and the contents of the e-mails from the ISP. The first two warrants also authorized the retrieval of some paper documents that were found. The government promptly made copies of the electronic files from the 65 seized computers, and then returned the original computers to their respective owners. There were privileged materials on some of the computers, and the government did not complete the forensic process of searching all the copies of the computers pursuant to a “taint team” by 15 months after the search occurred. Exactly what the government did do during the 15-month window is pretty uncertain from the opinion. Searching computers can take a lot of time, and the opinion confusingly says both that the government didn’t “review” the files and that the government claims that that it did. The defense moved to suppress whatever evidence might be found on the computers based on the government’s failure to conduct the forensic process in the 15 month window. Held: All of the electronic evidence from all three warrants is suppressed in its entirety. The analysis:

The Court recognizes that under current law there is no established upper limit as to when the government must review seized electronic data to determine whether the evidence seized falls within the scope of a warrant. See, e.g., Mutschelknaus, 564 F.Supp.2d at 1076 (“Neither Fed.R.Crim.P. 41 nor the Fourth Amendment provides for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant.”). However, the Fourth Amendment requires the government to complete its review, i.e., execute the warrant, within a “reasonable” period of time. Numerous cases hold that a delay of several months between the seizure of electronic evidence and the completion of the government’s review of that evidence as to whether it falls within the scope of the warrant is reasonable. See id. at 1076–77 (finding a two-month delay reasonable); see also Burns, 2008 WL 4542990, at *8–9 (finding a ten-month delay for completion of the government’s review reasonable).

The parties have not provided the Court with any authority, nor has the Court found any, indicating that the government may seize and image electronic data and then retain that data with no plans whatsoever to begin review of that data to determine whether any irrelevant, personal information was improperly seized. The government’s blatant disregard for its responsibility in this case is unacceptable and unreasonable. See United States v. Debbi, 244 F.Supp.2d 235, 237–38 (S.D.N.Y.2003) (finding a Fourth Amendment violation in the search, seizure, and retention of seven boxes of documents from the defendant’s home, which included “personal and religious files, general correspondence, [and] family financial records,” when “no meaningful attempt” was made to separate and retain only the items the warrant permitted to be seized). The government contends that Debbi is inapposite because, in that case, the government retained original paper documents, whereas, in this case, the government returned the original electronic documents and equipment and retained only the imaged electronic documents. The Court disagrees. It is a distinction without a difference. The government’s retention of all imaged electronic documents, including personal emails, without any review whatsoever to determine not only their relevance to this case, but also to determine whether any recognized legal privileges attached to them, is unreasonable and disturbing.

. . .
The Court has not reached this conclusion lightly. However, the Court cannot, in the interest of justice and fairness, permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination. Accordingly, Metter’s motion to suppress is granted. This conclusion is limited to the electronic evidence seized and imaged pursuant to the Metter Home Search Warrant, Office Search Warrant, and Email Search Warrant and does not include the paper documents and currency seized pursuant to those warrants.

It sounds like Judge Irizarry was really annoyed by the Government’s conduct. At the same time, I have trouble understanding exactly what Fourth Amendment principle Judge Irizarry thinks was violated here. She seems to be assuming that the Fourth Amendment ensures a right to the privacy of information seized pursuant to a search warrant if the information seized is not within the scope of the warrant. The idea seems to be that the government needs to complete its review of seized information quickly so the data outside the scope of the warrant can be taken outside the government’s reach — kind of a duty to separate the digital wheat from the digital chaff in a reasonable period of time, even if the government has warrants and the owners have their computers back. The assumption seems to be that evidence outside the scope of the warrant will be destroyed or made unavailable to the government after that search is completed, so the government needs to complete the forensic process quickly to enable that to happen. We saw some of this thinking in Judge Kozinski’s Compehrensive Drug Testing opinion, although it’s not generally found in existing Fourth Amendment caselaw. (It’s not clear if Judge Kozinski was trying to apply the Fourth Amendment, some other legal rule, or was just announcing new rules as some sort of advisory opinion.) Anyway, it will be interesting to see how this goes: This seems like the kind of case that would merit an interlocutory appeal, and I’m not sure the Second Circuit would look at this the same way.

Hat tip: Cybercrime Review.