DEBRA ANN LIVINGSTON and GERARD E. LYNCH, Circuit Judges:
Defendant-Appellant Stavros Ganias appeals from a judgment of the United States District Court for the District of Connecticut (Thompson, J.) convicting him, after a jury trial, of two counts of tax evasion in violation of 26 U.S.C. § 7201. He challenges his conviction on the ground that the Government violated his Fourth Amendment rights when, after lawfully copying three of his hard drives for off-site review pursuant to a 2003 search warrant, it retained these full forensic copies (or "mirrors"), which included data both responsive and non-responsive to the 2003 warrant, while its investigation continued, and ultimately searched the non-responsive data pursuant to a second warrant in 2006. Ganias contends that the Government had successfully sorted the data on the mirrors responsive to the 2003 warrant from the non-responsive data by January 2005, and that the retention of the mirrors thereafter (and, by extension, the 2006 search, which would not have been possible but for that retention) violated the Fourth Amendment. He argues that evidence obtained in executing the 2006 search warrant should therefore have been suppressed.
We conclude that the Government relied in good faith on the 2006 warrant, and that this reliance was objectively reasonable. Accordingly, we need not decide whether retention of the forensic mirrors violated the Fourth Amendment, and we AFFIRM the judgment of the district court.
In August 2003, agents of the U.S. Army Criminal Investigation Division ("Army CID") received an anonymous tip that Industrial Property Management ("IPM"), a company providing security for and otherwise maintaining a government-owned property in Stratford, Connecticut, pursuant to an Army contract, had engaged in misconduct in connection with that work. In particular, the informant alleged that IPM, owned by James McCarthy, had billed the Army for work that IPM employees had done for one of McCarthy's other businesses, American Boiler, Inc. ("AB"), and for construction work performed for IPM's operations manager at his home residence. The informant told the agents, including Special Agent Michael Conner, that IPM and AB's financial books were maintained by Stavros Ganias, a former Internal Revenue Service ("IRS") agent, who conducted business as Taxes International. On the basis of the informant's information, as well as extensive additional corroboration, Agent Conner prepared an affidavit seeking three warrants to search the offices of IPM, AB, and Taxes International for evidence of criminal activity.
In a warrant dated November 17, 2003, U.S. Magistrate Judge William I. Garfinkel authorized the search of Taxes International. The warrant authorized agents to seize, inter alia, "[a]ll books, records, documents, materials, computer hardware and software and computer associated data relating to the business, financial and accounting operations of [IPM] and [AB]." J.A. 433. It further authorized seizure of "[a]ny of the items described [in the warrant]... which are stored in the form of magnetic or electronic coding on computer media or on media capable of being read by a computer with the aid of computer-related equipment, including ... fixed hard disks, or removable hard disk cartridges, software or memory in any form." Id. The warrant also specifically authorized a number of digital search protocols, though it did not state that only these protocols were permitted.
The next day, Agent Shaver consolidated the eleven mirrored hard drives from all three searches (including the three from Ganias's office) onto a single external hard drive which he provided to Agent Conner. Agent Conner, in turn, provided this hard drive to the evidence custodian of the Army CID, who stored it at Fort Devens, Massachusetts. There the consolidated drive remained, unaltered and untouched, throughout the events relevant to this case. Around the same time, Agent Shaver created two additional copies of the mirrored drives on two sets of nineteen DVDs. After providing these DVD sets to Agent Conner, Agent Shaver then purged the external hard drives onto which he had originally written the mirrors. At this point, a week after the search, three complete copies of the mirrors of Ganias's hard drives existed: an untouched copy stowed away in an evidence locker and two copies available for forensic analysis.
Though internal protocols required that specialized digital forensic analysts search the mirrored hard drives, the paper files were not subject to such limitations. Thus, shortly after the November 19 seizure, the Army CID agents began to analyze the non-digital files seized pursuant to the warrant. These files suggested that IPM had made payments to a third company whose owner, according to the Connecticut Department of Labor, was a full-time employee of an insurance company who received no wages from any source other than that insurance company. This and other red flags spurred Agent Conner to contact the Criminal Investigation Division of the IRS, which subsequently joined the investigation.
In early February 2004, as he and his fellow agents continued to follow leads from the paper files, Agent Conner sent one of the two DVD sets containing the forensic mirrors to the Army Criminal Investigation Laboratory ("ACIL") in Forest Park, Georgia, accompanied by a copy of one of the three search warrants. In early June, the ACIL assigned Gregory Norman, a digital evidence examiner, to perform a forensic analysis. Around the same time, Special Agent Michelle Chowaniec, who replaced Agent Conner as the primary case agent for the Army CID in late March, provided the second set of DVDs to the IRS agent assigned to the case, Special Agent Paul Holowczyk. Agent Holowczyk in turn, passed it on, by way of intermediaries, to Special Agent Vita Paukstelis, a computer investigative specialist.
Norman commenced his analysis in late June by loading the eleven mirrored drives into EnCase — the same software with which Agent Shaver initially created the mirrors — so that he could search the data thereon. After looking at the search warrants, he created a number of keywords, with which he searched for potentially relevant data. Initially, the search returned far too many results for practicable review (more than 17,000 hits); thus, Norman requested new keywords from Agent Chowaniec. On the basis of these new keywords, he was able to narrow his search and ultimately identify several files he thought might be of interest to the investigation, all of which he put on a single CD.
Norman's counterpart in the IRS, Agent Paukstelis — who, in addition to receiving the search warrant with her set of DVDs, also received a list of companies, addresses, and key individuals relating to the investigation, along with "a handwritten notation next to the name `Taxes International' that stated `(return preparer) do not search,'" Ganias, 2011 WL 2532396, at *3 — conducted her analysis over a period of about four months. Because she worked for the IRS, she limited her search to the three mirrored drives from Taxes International. Though Agent Paukstelis used ILook, a different software program, to review the mirrored hard drives, she too could not open Quick-Books files without the relevant proprietary software. Still, though she could not open these files, she believed, based on the information to which she had access, that they were within the scope of the warrant; thus, in October 2004, she copied this data, in concert with other responsive data, onto a CD, three copies of which she sent to Agent Holowczyk and Special Agent Amy Hosney, also with the IRS. In light of the note she had received with her DVD set as well as the list of relevant entities, Agent Paukstelis avoided, to the degree she could, searching any files of Taxes International that did not appear to be directly relevant to that list. On November 30, 2004, Paukstelis also provided a "restoration" of the mirrors of the Taxes International hard drives to Special Agent
Agents Chowaniec and Conner, after receiving Norman's CD and report in late July, conducted initial reviews of the data. Like Norman and Agent Paukstelis, however, they could not open the QuickBooks files. At the same time, the agents were busy, in the words of Agent Chowaniec, "tracking down other leads[,] ... [issuing] grand jury subpoenas, ... doing interviews of subcontractors and identifying subcontractors from the papers that [the agents had] received from the search warrants." J.A. 294-95. In October, Agents Hosney and Chowaniec attempted, together, to review the QuickBooks files, but again lacked the relevant software to do so. Finally, in November 2004, Agent Chowaniec, having acquired the appropriate software, opened two IPM QuickBooks files on her office computer, and then in December, Agents Hosney and Chowaniec, using the restoration provided by Agent Paukstelis, looked at additional IPM QuickBooks files. Though they had the entirety of the mirrored data before them (the only time throughout the investigation that the case agents had direct access to a software interface permitting them to view essentially all of the data stored on the mirrors), they carefully limited their search: Agent Hosney testified that they "only looked at the QuickBooks files for Industrial Property Management and American Boiler ... [b]ecause those were the only two companies named in the search warrant attachment." J.A. 340. They did, however, observe that other files existed — both on the CD Norman had provided and on the restoration — in particular, the files Agent Hosney ultimately searched in 2006.
Ganias contends that there is no dispute that by this point, the agents had finished "identifying and segregating the files within the November 2003 warrant's scope." Appellant Reply Br. at 5. In actuality, the record is unclear as to whether the forensic examination of the mirrored computers pursuant to the initial search warrant had indeed concluded as a forward-looking matter, rather than from the perspective of hindsight.
Over the next year, the agents continued to investigate IPM and AB. Analysis of the paper files taken pursuant to the November 2003 search warrant revealed potential errors in AB's tax returns that seemed to omit income reflected in checks deposited into IPM's account. Aware that Ganias had prepared these tax returns and deposited the majority of these checks, Agent Hosney came to suspect that Ganias was engaged in tax-related crimes.
On February 14, 2006, Ganias, accompanied by his lawyer, met in a proffer session with Agent Hosney and others involved in the investigation.
In February 2010, Ganias moved to suppress the evidence Agent Hosney acquired pursuant to the 2006 warrant. After a two-day
At trial, the Government introduced information in Ganias's QuickBooks files as evidence against him, in particular highlighting the fact that payments made to him by clients such as IPM were characterized as "owner's contributions," which prevented QuickBooks from recognizing them as income.
Ganias appealed. On review of his conviction, a panel of this Court concluded, unanimously, that the Government had violated the Fourth Amendment; in a divided decision, the panel then ordered suppression of the evidence obtained in executing the 2006 warrant and vacated the jury verdict. We subsequently ordered this rehearing en banc in regards to, first, the existence of a Fourth Amendment violation and, second, the appropriateness of suppression.
"On appeal from a district court's ruling on a motion to suppress evidence, `we review legal conclusions de novo and findings of fact for clear error.'" United States v. Bershchansky, 788 F.3d 102, 108 (2d Cir. 2015) (quoting United States v. Freeman, 735 F.3d 92, 95 (2d Cir. 2013)). We may uphold the validity of a judgment "on any ground that finds support in the record." Headley v. Tilghman, 53 F.3d 472, 476 (2d Cir. 1995).
The district court concluded that the conduct of the agents in this case comported fully with the Fourth Amendment, and
"The touchstone of the Fourth Amendment is reasonableness...." United States v. Miller, 430 F.3d 93, 97 (2d Cir. 2005) (alteration omitted) (quoting United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)). As relevant here, "searches pursuant to a warrant will rarely require any deep inquiry into reasonableness." United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (alteration omitted) (quoting Illinois v. Gates, 462 U.S. 213, 267, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (White, J., concurring in judgment)). Nevertheless, both the scope of a seizure permitted by a warrant,
According to Ganias, when law enforcement officers execute a warrant for a hard drive or forensic mirror that contains data that, as here, cannot feasibly be sorted into responsive and non-responsive categories on-site, "the Fourth Amendment demands, at the very least, that the officers expeditiously complete their off-site search and then promptly return (or destroy) files out-side the warrant's scope."
To support this argument, Ganias relies principally on United States v. Tamura, 694 F.2d 591 (9th Cir. 1982), a Ninth Circuit case involving the search and seizure of physical records. In Tamura (unlike the present case, in which a warrant specifically authorized the agents to seize hard drives and to search them off-site) officers armed only with a warrant authorizing them to seize specific "records" instead seized numerous boxes of printouts, file
Because we resolve this case on good faith grounds, we need not decide the relevance, if any, of Tamura (or, more broadly, the validity of Ganias's Fourth Amendment claim). We note, however, that there are reasons to doubt whether Tamura (to the extent we would indeed follow it) answers the questions before us. First, on its facts, Tamura is distinguishable from this case, insofar as the officers there seized for off-site review records that the warrant did not authorize them to seize,
The central premise of Ganias's reliance on Tamura is that the search of a digital storage medium is analogous to the search of a file cabinet. The analogy has some force, particularly as seen from the perspective of the affected computer user. Computer users — or at least, average users (in contrast to, say, digital forensics experts) — typically experience computers as filing cabinets, as that is precisely how
That said, though it may have some relevance to our inquiry, the file cabinet analogy is only that — an analogy, and an imperfect one. Cf. James Boyle, The Public Domain 107 (2008) ("Analogies are only bad when they ignore the key difference between the two things being analyzed."). Though to a user a hard drive may seem like a file cabinet, a digital forensics expert reasonably perceives the hard drive simply as a coherent physical storage medium for digital data — data that is interspersed throughout the medium, which itself must be maintained and accessed with care, lest this data be altered or destroyed.
"Files," in short, are not as discrete as they may appear to a user. Their interspersion throughout a digital storage medium, moreover, may affect the degree to which it is feasible, in a case involving search pursuant to a warrant, to fully extract and segregate responsive data from non-responsive data. To be clear, we do not suggest that it is impossible to do so in any particular or in every case; we emphasize only that in assessing the reasonableness, for Fourth Amendment purposes, of the search and seizure of digital evidence, we must be attuned to the technological features unique to digital media as a whole and to those relevant in a particular case — features that simply do not exist in the context of paper files.
These features include an additional complication affecting the validity of the file cabinet analogy: namely, that a good deal of the information that a forensic examiner may seek on a digital storage device (again, because it is a coherent and complex forensic object and not a file cabinet) does not even remotely fit into the typical user's conception of a "file." See Daniel B. Garrie & Francis M. Allegra, Fed. Judicial Ctr., Understanding Software, the Internet, Mobile Computing, and the Cloud: A Guide for Judges 39 (2015) ("Forensic software gives a forensic examiner access to electronically stored information (ESI) that is otherwise unavailable to a typical computer user."). Forensic investigators may, inter alia, search for and discover evidence that a file was
In emphasizing such specifics, we reiterate that we do not mean to thereby minimize or ignore the privacy concerns implicated when a hard drive or forensic mirror is retained, even pursuant to a warrant. The seizure of a computer hard drive, and its subsequent retention by the government, can give the government possession of a vast trove of personal information about the person to whom the drive belongs, much of which may be entirely irrelevant to the criminal investigation that led to the seizure. Indeed, another weakness of the file cabinet analogy is that no file cabinet has the capacity to contain as much information as the typical computer hard drive. In 2005, Professor Orin Kerr noted that the typical personal computer hard drive had a storage capacity of about eighty gigabytes, which he estimated could hold text files equivalent to the "information contained in the books on one floor of a typical academic library." Kerr, Searches and Seizures in a Digital World, supra, at
Moreover, quantitative measures fail to capture the significance of the data kept by many individuals on their computers. Tax records, diaries, personal photographs, electronic books, electronic media, medical data, records of internet searches, banking and shopping information — all may be kept in the same device, interspersed among the evidentiary material that justifies the seizure or search. Cf. Riley v. California, ___ U.S. ___, 134 S.Ct. 2473, 2489-90, 189 L.Ed.2d 430 (2014) (explaining that even microcomputers, such as cellphones, have "immense storage capacity" that may contain "every piece of mail [people] have received for the past several months, every picture they have taken, or every book or article they have read," which can allow the "sum of an individual's private life [to] be reconstructed"); United States v. Galpin, 720 F.3d 436, 446 (2d Cir. 2013) ("[A]dvances in technology and the centrality of computers in the lives of average people have rendered the computer hard drive akin to a residence in terms of the scope and quantity of private information it may contain."). While physical searches for paper records or other evidence may require agents to rummage at least cursorily through much private material, the reasonableness of seizure and subsequent retention by the government of such vast quantities of irrelevant private material was rarely if ever presented in cases prior to the age of digital storage, and has never before been considered justified, or even practicable, in such cases. Even as we recognize that search and seizure of digital media is, in some ways, distinct from what has come before, we must remain mindful of the privacy interests that necessarily inform our analysis.
We note, however, that parties with an interest in retained storage media are not without recourse. As noted above, Ganias never sought the return of any seized material, either by negotiating with the Government or by motion to the court. Though negotiated stipulations regarding the admissibility or integrity of evidence may not always suffice to satisfy reasonable interests of the government in retention during the pendency of an investigation,
A person from whom property is seized by law enforcement may move for its return under Federal Rule of Criminal Procedure 41(g).
Rule 41(g) thus provides a potential mechanism, in at least some contexts, for dealing with the question of retention at a time when the government may be expected to have greater information about the data it seeks and the best process through which to search and present that data in court. It is worth observing, then, that Rule 41(g) constitutes a statutory solution (as opposed to a purely judicially constructed one) to at least one facet of the retention problem.
As we have said, we need not resolve the ultimate question whether the Government's retention of forensic copies of Ganias's hard drives during the pendency of its investigation violated the Fourth Amendment. We conclude, moreover, that we should not decide this question on the present record, which does not permit a full assessment of the complex and rapidly evolving technological issues, and the significant privacy concerns, relevant to its consideration.
The Government argues that, because it acted in good faith throughout the pendency of this case, any potential violation of the Fourth Amendment does not justify the extraordinary remedy of suppression. See Davis v. United States, 564 U.S. 229, 237, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (noting the "heavy toll" exacted by suppression, which "requires courts to ignore reliable, trustworthy evidence," and characterizing suppression as a "bitter pill," to be taken "only as a `last resort'" (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006))); accord United States v. Clark, 638 F.3d 89, 99 (2d Cir. 2011). In particular, the Government urges that its "reliance on the 2006 warrant," which it obtained after disclosing to the magistrate judge all relevant facts regarding its retention of the mirrored files, "fits squarely within the traditional Leon exception for conduct taken in reliance on a search warrant issued by a neutral and detached magistrate judge."
In Leon, the Supreme Court determined that the exclusion of evidence is inappropriate when the government acts "in objectively reasonable reliance" on a search warrant, even when the warrant is subsequently invalidated. 468 U.S. at 922, 104 S.Ct. 3405; see also Clark, 638 F.3d at 100 ("[I]n Leon, the Supreme Court strongly signaled that most searches conducted pursuant to a warrant would likely fall within its protection."). Such reliance, however, must be objectively reasonable. See Leon, 468 U.S. at 922-23, 104 S.Ct. 3405 ("[I]t is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued." (footnote omitted)). Thus, to assert good faith reliance successfully, officers must, inter alia, disclose all potentially adverse information to the issuing judge. See United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir.) ("The good faith exception to the exclusionary rule does not protect searches by officers who fail to provide all potentially adverse information to the issuing judge...."), aff'd and amended, 91 F.3d 331 (2d Cir. 1996) (per curiam); see also United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985) (finding good faith reliance on a warrant, under Leon, where officers, first, committed a constitutional violation they did not
Ganias argues that reliance on the 2006 warrant is misplaced for two reasons. First, he urges that the alleged constitutional violation here (unlawful retention of the mirrored drives) had "long since" ripened into a violation by April 2006, when the second warrant was obtained, Appellant Br. at 55-56, and attests that "[n]othing [in Leon] suggests that the police, after they engage in misconduct, can then `launder their prior unconstitutional behavior by presenting the fruits of it to a magistrate,'" id. at 56 (quoting State v. Hicks, 146 Ariz. 533, 707 P.2d 331, 333 (Ariz. Ct. App. 1985)). Second, Ganias argues that, even if "a subsequent warrant can ever appropriately purge the taint of an earlier violation, the agent must, at the very least, `provide all potentially adverse information' regarding the earlier illegality `to the issuing [magistrate] judge,'" a requirement that he argues was not satisfied here. Id. at 58 (quoting Reilly, 76 F.3d at 1280). Ganias's arguments are unavailing.
First, Ganias relies on this Court's decision in Reilly to argue categorically that agents who have engaged in a predicate Fourth Amendment violation may not rely on a subsequently issued warrant to establish good faith. Reilly, however, stands for no such thing. In Reilly, officers unlawfully intruded on the defendant's curtilage, discovering about twenty marijuana plants, before they departed and obtained a search warrant based on a "bare-bones" description of their intrusion and resulting observations which this Court found "almost calculated to mislead." Reilly, 76 F.3d at 1280; see also id. ("[The affidavit] simply ... stated that [the officers] walked along Reilly's property until they found an area where marijuana plants were grown. It did not describe this area to the Judge[,]... [and it] gave no description of the cottage, pond, gazebo, or other characteristics of the area.... [The omitted information] was crucial. Without it, the issuing judge could not possibly make a valid assessment of the legality of the warrant that he was asked to issue."). We rejected the government's argument that the officers were entitled to rely on the warrant, noting that the officers had "undert[aken] a search that caused them to invade what they could not fail to have known was potentially ... curtilage," and that they thereafter "failed to provide [the magistrate issuing the warrant] with an account of what they did," so that the magistrate was unable to ascertain whether the evidence on which the officers relied in seeking the warrant was "itself obtained illegally and in bad faith." Id. at 1281. In such circumstances, Leon did not — and does not — permit good faith reliance on a warrant. See Leon, 468 U.S. at 923, 104 S.Ct. 3405 (observing that an officer's reliance on a warrant is not objectively reasonable if he "misled [the magistrate with] information in an affidavit that [he] knew was false or would have known was false except for his reckless disregard of the truth").
The present case, however, is akin not to Reilly, but to this Court's decision in Thomas, which the Reilly panel carefully distinguished, while reaffirming. See Reilly, 76 F.3d at 1281-82. In Thomas, an agent, acting without a warrant, used a dog trained to detect narcotics to conduct a "canine sniff" at a dwelling. 757 F.2d at 1367. The agent presented evidence acquired as a result of the sniff to a "neutral
Reilly carefully distinguished Thomas, and in a manner that makes apparent that it is Thomas that is dispositive here. First, the Reilly panel noted that Thomas was unlike Reilly, in that the agent in Thomas disclosed all crucial facts for the legal determination in question to the magistrate judge. Reilly, 76 F.3d at 1281. Then, the Reilly panel articulated another difference: while in Reilly, "the officers undertook a search that caused them to invade what they could not fail to have known was potentially Reilly's curtilage," in Thomas, the agent "did not have any significant reason to believe that what he had done [conducting the canine sniff] was unconstitutional." Id.; see also id. ("[U]ntil Thomas was decided, no court in this Circuit had held that canine sniffs violated the Fourth Amendment."). Thus, the predicate act in Reilly tainted the subsequent search warrant, whereas the predicate act in Thomas did not. The distinction did not turn on whether the violation found was predicate, or prior to, the subsequent search warrant on which the officers eventually relied, but on whether the officers' reliance on the warrant was reasonable.
Contrary to Ganias's argument, then, it is not the case that good faith reliance on a warrant is never possible in circumstances in which a predicate constitutional violation has occurred. The agents in Thomas committed such a violation, but they had no "significant reason to believe" that their predicate act was indeed unconstitutional, Reilly, 76 F.3d at 1281, and the issuing magistrate was apprised of the relevant conduct, so that the magistrate was able to determine whether any predicate illegality precluded issuance of the warrant. In such circumstances, invoking the good faith doctrine does not "launder [the agents'] prior unconstitutional behavior by presenting the fruits of it to a magistrate," as Ganias suggests. Appellant Br. at 56 (quoting Hicks, 707 P.2d at 333). In such cases, the good faith doctrine simply reaffirms Leon's basic lesson: that suppression is inappropriate where reliance on a warrant was "objectively reasonable." Leon, 468 U.S. at 922, 104 S.Ct. 3405.
Ganias disagrees, arguing, in particular, that, though Agent Hosney alerted the magistrate that the mirrors had been retained for several years; that data responsive to the original warrant had been both located and extensively analyzed; and that those of Ganias's QuickBooks files that Agent Hosney wanted to search were non-responsive to the original warrant, the Hosney affidavit did not go far enough in that it failed to disclose that the agents "had been retaining the non-responsive records for a full 16 months after the files within the November 2003 warrant's scope had been identified." Appellant Br. at 60. As an initial matter, the Government did alert the magistrate that it had located responsive data on the mirrors and conducted extensive analysis of that responsive material, and it is not clear what else the Government should have said: the district court did not determine — nor does the record show — that by January 2005, as Ganias contends, the Government had determined, as a forward-looking matter, that it had performed all forensic searches of data responsive to the 2003 warrant that might prove necessary over the course of its investigation. Compare J.A. 322 (Q: "So it's fair to say that as of mid-December [2004], your forensic analysis was completed at that time?" Agent Chowaniec: "That's correct, of the computers."), with J.A. 324 (Q: "Did you know you wouldn't require further analysis by Greg Norman or any other examiner at the Army lab in Georgia after December of 2004?" Agent
Second, here, as in Thomas, it is also clear that the agents, as the panel put it in Reilly, "did not have any significant reason to believe that what [they] had done was unconstitutional," Reilly, 76 F.3d at 1281 — that their retention of the mirrored hard drives, while the investigation was ongoing, was anything but routine. At the time of the retention, no court in this Circuit had held that retention of a mirrored hard drive during the pendency of an investigation could violate the Fourth Amendment, much less that such retention would do so in the circumstances presented here. See id. (noting that suppression was inappropriate in Thomas in part because no relevant precedent established that canine sniffs of a dwelling "violated the Fourth Amendment").
Finally, the record here is clear that the agents acted reasonably throughout the investigation. They sought authorization in 2003 to seize the hard drives and search them off-site; they minimized the disruption to Ganias's business by taking full forensic mirrors; they searched the mirrors only to the extent authorized by, first, the 2003 warrant, and then the warrant issued in 2006; they were never alerted that Ganias sought the return of the mirrors; and they alerted the magistrate judge to these pertinent facts in applying for the second warrant. In short, the agents acted reasonably in relying on the 2006 warrant to search for evidence of Ganias's tax evasion. This case fits squarely within Leon so that, assuming, arguendo, that a Fourth Amendment violation occurred, suppression was not warranted.
We conclude that the Government relied in good faith on the 2006 search warrant and thus AFFIRM the judgment of the
LOHIER, Circuit Judge, joined by POOLER, Circuit Judge, concurring:
I concur fully in Part I of the majority opinion, which accurately recites the facts, and Part III, which affirms based on the narrow ground that the Government relied in good faith on the 2006 search warrant obtained in this case. It bears emphasizing that Part III contains the only holding in the majority opinion. I also concur insofar as the majority opinion clarifies that under appropriate circumstances it may be helpful for litigants to use the mechanism provided by Rule 41(g) of the Federal Rules of Criminal Procedure when faced with the Government's retention of electronic data.
Chin, Circuit Judge, dissenting:
I respectfully dissent.
Over two hundred fifty years ago, agents of the King of England, with warrant in hand, entered the home of John Entick. They rummaged through boxes and trunks, cabinets and bureaus. They were looking for evidence of known instances of seditious libel, but they took "all the papers and books without exception." Entick v. Carrington, 19 How. St. Tr. 1029, 1064 (C.P. 1765). In holding that Entick's rights were violated, the court explained:
Id. at 1066.
Entick was not lost on the Framers. As the Supreme Court has noted, "its propositions were in the minds of those who framed the fourth amendment to the constitution, and were considered as sufficiently explanatory of what was meant by unreasonable searches and seizures." Boyd v. United States, 116 U.S. 616, 626-27, 6 S.Ct. 524, 29 L.Ed. 746 (1886). And enshrined in the Fourth Amendment is the foundational principle that the Government cannot come into one's home looking for some papers and, without suspicion of broader criminal wrongdoing, indiscriminately take all papers instead.
In this case, the Government argues that when those papers are inside a computer, the result is different. It argues that when computers are involved, it is free to overseize files for its convenience, including files outside the scope of a warrant, and retain them until it has found a reason for their use. In essence, the Government contends that it is entitled to greater latitude in the computer age. I disagree. If anything, the protections of the Fourth Amendment are even more important in the context of modern technology, for the Government has a far greater ability to intrude into a person's private affairs.
I disagree. I would hold, as the panel held unanimously, that the Government violated Ganias's Fourth Amendment rights when it retained Ganias's non-responsive files for nearly two-and-a-half years and then reexamined the files for evidence of additional crimes. United States v. Ganias, 755 F.3d 125, 133-40 (2d Cir. 2014). I would also hold, as two members of the panel did, that the Government's actions are not excused by the good faith exception. Id. at 140-41. But see id. at 141 (Hall, J., dissenting in part).
I consider first whether Ganias's Fourth Amendment rights were violated. The majority addresses the question at length, with some twenty-five pages of scholarly discussion about the Fourth Amendment in the digital age, but it reaches no conclusion. E.g., Maj. Op. at 200, 208, 211, 216, 219, 220-21. Although we reheard the case en banc (at our own request and not at the request of any party), and despite the benefit of additional briefing and oral argument from the parties as well as eight amicus briefs,
The facts are largely undisputed. Ganias was providing tax and accounting services to individuals and small businesses, including Industrial Property Management, Inc. ("IPM") and American Boiler. In November 2003, the Army, as part of an investigation of those two entities, subpoenaed from Ganias:
J. App. 433. Two Army computer specialists and another Army investigator came to Ganias's office, and they saw three computers. They made identical copies of the hard drives of those computers to take
Back in their offices, the Army investigators copied the data taken from Ganias's computers onto "two sets of 19 DVDs," one of which was "maintained as evidence" while the other was kept as a "working copy." Special App. 11. It took the Army Criminal Investigation Division some seven months to begin reviewing the files, but before it began doing so, it invited the Internal Revenue Service (the "IRS") to join the investigation. The Army and the IRS thereafter proceeded separately, reviewing the mirror images for files responsive to the warrant.
By December 2004, approximately thirteen months after the seizure, some four months of which was spent locating a copy of the off-the-shelf consumer software known as QuickBooks, Army and IRS investigators were able to isolate and extract the files covered by the warrant, that is, the files relating to IPM and American Boiler. The investigators were aware that, because of the constraints of the warrant, they were not permitted to review any other computer records. Indeed, the investigators were careful, at least until later, to review only data covered by the November 2003 warrant.
The investigators did not, however, purge or delete or return the non-responsive files. To the contrary, they retained the files because they "viewed the data as the government's property, not Mr. Ganias's property." J. App. 146.
In late 2004, IRS investigators discovered accounting irregularities regarding transactions between IPM and American Boiler in the documents taken from Ganias's office. After subpoenaing and reviewing the relevant bank records in 2005, they began to suspect that Ganias was not properly reporting American Boiler's income. Accordingly, on July 28, 2005, some twenty months after the seizure of his computer files, the Government officially expanded its investigation to include possible tax violations by Ganias. Further investigation in 2005 and early 2006 indicated that Ganias had been improperly reporting income for both his clients, leading the Government to suspect that he also might have been underreporting his own income.
At that point, the IRS case agent wanted to review Ganias's personal financial records, and she knew, from her review of the seized computer records, that they were among the files in the DVD copies of Ganias's hard drives. The case agent was aware, however, that Ganias's personal financial
In February 2006, the Government asked Ganias and his counsel for permission to access certain of his personal files that were contained in the materials seized in November 2003. Ganias did not respond, and thus, on April 24, 2006, the Government obtained another warrant to search the preserved mirror images of Ganias's personal financial records taken in 2003. At that point, the mirror images had been in the Government's possession for almost two-and-a-half years.
"[T]he ultimate touchstone of the Fourth Amendment is `reasonableness.'" Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). In adopting the Fourth Amendment, the Framers were principally concerned about "indiscriminate searches and seizures" conducted "under the authority of `general warrants.'" United States v. Galpin, 720 F.3d 436, 445 (2d Cir. 2013) (quoting Payton v. New York, 445 U.S. 573, 583, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). General warrants were ones "not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application." Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 1980, 186 L.Ed.2d 1 (2013). The Fourth Amendment guards against this practice by providing that a warrant will issue only if: (1) the Government establishes probable cause to believe the search will uncover evidence of a specific crime; and (2) the warrant states with particularity the areas to be searched and the items to be seized. Galpin, 720 F.3d at 445-46.
The latter requirement, in particular, "makes general searches ... impossible" because it "prevents the seizure of one thing under a warrant describing another." Id. at 446 (quoting Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927)). This restricts the Government's ability to remove all of an individual's papers for later examination because it is generally unconstitutional to seize any item not described in the warrant. See Horton v. California, 496 U.S. 128, 140, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982). Certain exceptions have been made in those "comparatively rare instances where documents [we]re so intermingled that they [could not] feasibly be sorted on site." Tamura, 694 F.2d at 595-96. These circumstances might occur, for example, where potentially relevant documents are interspersed through a large number of boxes or file cabinets. See id. at 595. But in those cases, the off-site review had to be monitored by a neutral magistrate and non-responsive documents were to be returned after the relevant items were identified. Id. at 596-97.
In the computer age, off-site review has become much more common. The ability of computers to store massive volumes of information presents logistical problems in the execution of search warrants, and files on a computer hard drive are often "so intermingled that they cannot feasibly be sorted on site." Id. at 595. Forensic analysis of electronic data may take weeks or months to complete, and it would be impractical for agents to occupy an individual's home or office, or retain an individual's computer, for such extended periods of time. It is now also unnecessary. Today, advancements in technology enable the Government to create a mirror image of an individual's hard drive, which can be searched as if it were the actual hard drive
But these practical necessities must still be balanced against our possessory and privacy interests, which have become more susceptible to deprivation in the computer age. A computer does not consist simply of "papers," but now contains the quantity of information found in a person's residence or greater. See Riley v. California, ___ U.S. ___, 134 S.Ct. 2473, 2489, 189 L.Ed.2d 430 (2014); Galpin, 720 F.3d at 446. Virtually the entirety of a person's life may be captured as data: family photographs, correspondence, medical history, intimate details about how a person spends each passing moment of each day. GPS-enabled devices reveal our whereabouts. A person's internet search history may disclose her mental deliberations, whether or not those thoughts were favored by the Government, the public at large, or even that person's own family. Smartphones "could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." Riley, 134 S.Ct. at 2489; see also Michael D. Shear, David E. Sanger & Katie Benner, In the Apple Case, a Debate Over Data Hits Home, N.Y. Times (Mar. 13, 2016) ("It is a minicomputer stuffed with every detail of a person's life: photos of children, credit card purchases, texts with spouses (and nonspouses), and records of physical movements."). From a mere data storage device, a forensic analyst could reconstruct a "considerable chunk of a person's life." Kerr, supra note 1, at 569. All of this information is captured when the Government, in executing a search warrant, makes a mirror image of a hard drive.
We know only general descriptions of what was in Ganias's three hard drives — "personal and financial information," including information on other tax and accounting clients (e.g., social security numbers) that was private to them — but the Fourth Amendment requires us to consider broadly the ramifications of computer seizures. J. App. 428. If Ganias were a doctor, his computer might have contained the entire medical history of hundreds of individuals. If Ganias were a teacher, his computer could have contained educational information on dozens of students and communications with their families. If Ganias were not an individual but a corporation like Apple, Dropbox, Google, or Microsoft that stores individuals' information in the "cloud," the Government would have captured an untold vastness of information on millions of individuals. See Jim Kerstetter, Microsoft Goes on Offensive Against Justice Department, N.Y. Times (Apr. 15, 2016) ("When customer information is stored in a giant data center run by companies like Google, Apple and Microsoft, investigators can go straight to the information they need, even getting a judge to order the company to keep quiet about it."); see also Andrew Keane Woods, Against Data Exceptionalism, 68 Stan. L. Rev. 729, 743 (2016) ("Twenty years ago, a kidnapper might have confessed to a crime by writing in his diary.... Today the same admission is just as likely to be stored online....").
To safeguard individuals' possessory and privacy interests, when the Government seeks to review mirror images off-site, we are careful to subject the Government's conduct to the rule of reasonableness. See, e.g., United States v. Ramirez, 523 U.S. 65, 71, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998) ("The general touchstone of reasonableness
Hence, for these practical considerations, the Government may, consistent with the Fourth Amendment, overseize electronically stored data when executing a warrant. But overseizure is exactly what it sounds like. It is a seizure that exceeds or goes beyond what is otherwise authorized by the Fourth Amendment. It is an overseizure of evidence that may be reasonable, in light of the practical considerations.
But once the Government is able to extract the responsive documents, its right to the overseizure of evidence comes to an end. This obvious principle has long been adhered to in the context of physical documents, such as when the Government seizes entire file cabinets for off-site review. See Tamura, 694 F.2d at 596-97 ("We likewise doubt whether the Government's refusal to return the seized documents not described in the warrant was proper."); see also Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) ("[T]o the extent such papers were not within the scope of the warrants or were otherwise improperly seized, the State was correct in returning them voluntarily...."). By logical extension, at least in a situation where responsive computer files can be extracted without harming other government interests, this principle would apply with equal force. See CDT, 621 F.3d at 1175-76 (using "file cabinets" as a starting analogy for analyzing digital privacy issues). Once responsive files are segregated or extracted, the retention of non-responsive documents is no longer reasonable, and the Government is obliged, in my view, to return or dispose of the non-responsive files within a reasonable period of time. See CDT, 621 F.3d at 1179 (Kozinski, J., concurring) ("Once the data has been segregated ... any remaining copies should be destroyed or ... returned...."). At that point, the Government's overseizure of files and continued retention of non-responsive documents becomes the equivalent of an unlawful general warrant. See CDT, 621 F.3d at 1176 (majority opinion) (noting "serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant"); cf. United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 955-56, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring) (warning that "Government can store... records and efficiently mine them for information years into the future").
In the circumstances here, the Government violated Ganias's right against unreasonable searches and seizures. The Government overseized Ganias's data in
The majority comments that it is "unclear" whether the Government had segregated the files relating to IPM and American Boiler from non-responsive files by December 2004. Maj. Op. at 205-06 & n. 12. But the record shows that by October 2004, the Government had placed files thought to be responsive onto a CD. Referring to this event at rehearing en banc, the Government stated:
Oral Arg. 32:12-43 (emphasis added). And as an agent then testified, "as of mid-December, [the] forensic analysis was completed." J. App. 322. In other words, the responsive files were segregated.
The majority posits that perhaps the agents did not consider the forensic analysis as to IPM and American Boiler completed "as a forward-looking matter" as of December 2004. Maj. Op. at 205, 224. The record, however, shows otherwise, and, at a minimum, it is clear that the segregation of the files was essentially complete at that point. Moreover, this factual distinction is both speculative and irrelevant. The Fourth Amendment should not be held in abeyance on the off-chance that later developments might cause agents to want to reexamine documents preliminarily determined to be non-responsive. Indeed, the Fourth Amendment recognizes that some degree of perfection must be sacrificed to safeguard liberties. By barring the Government from simply taking everything through the use of a general warrant, the Fourth Amendment contemplates that investigators may miss something. With computers, another search term can always be concocted and data can always be further crunched. But the fact that another iota of evidence might be uncovered at some point down the road does not defeat the rights protected by the Fourth Amendment. Cf. Riley, 134 S.Ct. at 2491 ("[T]he Founders did not fight a revolution to gain the right to government agency protocols.").
I next turn to the Government's arguments as to why the Fourth Amendment was not violated. The Government offers several "legitimate governmental interests" that it contends permit it to hold onto data long after it has been seized, sorted, and segregated, even though the data includes irrelevant, personal information. See Gov't Br. 29. During the en banc process, the Government suggested that these interests permit it to retain data for the duration of the prosecution. See id. at 17, 29; Oral Arg. 27:38-57.
The Government argues that it has the right to retain non-responsive files so that, at trial, responsive files will be more easily authenticated or of greater evidentiary weight. Once again, the Government's argument obscures the issues in this case. The agents could not have been keeping non-responsive files for the purpose of proceeding against Ganias, as they did not yet suspect Ganias of criminal wrongdoing.
Further, even if the authentication concern is genuine, "[t]he bar for authentication of evidence is not particularly high." United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007). Indeed, as long as a reasonable juror could find that evidence was authentic we permit that evidence to be introduced. Id.; see Fed. R. Evid. 901(a). Meeting this minimal burden is not difficult — all the Government need do is to introduce as a trial witness one of its agents who handled the data. See Tamura, 694 F.2d at 597.
The Government presses the point by arguing that by keeping the hard drives, it could more easily preserve the chain of custody and authenticate by "calculat[ing]... a `hash value' for the original and th[e] [mirror] image." Gov't Br. 30. A "hash value" is an alphanumeric marker (e.g., "ABC123") for data that stays the same if and only if the data is not altered. Thus, if a hard drive and its mirror image have the same hash value, the files in the mirror image are exact replicas; whereas if the Government purges data from the mirror image, then hash values would not match. Hash values thus make authentication easy. See Fed. R. Evid. 901(b)(4).
The hashing argument, however, is not persuasive. First, the Government would have to call an expert just to explain to a jury what a hash value was, as it did here. See Fed. R. Evid. 702(a); Trial Tr. 128-30. This is no less burdensome than simply having an agent testify as to the chain of custody. Second, as the Government acknowledged at rehearing en banc, it can hash individual files that it has segregated. See Oral Arg. 31:08-30. This practice is not a hypothetical possibility: the Government
Next, the Government contends that it has an interest in retaining computer evidence in its "original form" to preserve "the integrity and usefulness of computer evidence during a criminal prosecution." Gov't Br. 32. This contention is unpersuasive. The Government can always preserve a copy of the responsive files to protect against degradation — indeed, the Government points to no reason why a hard drive with all of Ganias's files would be less prone to degradation than a hard drive with some of his files. Moreover, even assuming there is some slight prosecutorial advantage gained by being able to show juries what a computer interface looked like in its "original form," this benefit surely does not justify a violation of basic Fourth Amendment rights.
In a similar vein, the Government argues that retention of mirror images "preserves the evidentiary value of computer evidence itself" and might "refute claims... of data tampering." Gov't Br. 31-34. As a practical matter, a claim of data tampering would easily fall flat where, as here, the owner kept his original computer and the Government gave him a copy of the mirror image.
Remarkably, the Government also argues that it should be allowed to hold on to overseized data for the defendant's benefit — so that it can comply with its discovery obligations and duty to disclose exculpatory materials under Brady. See generally Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Government is essentially arguing that it must hold on to the materials so that it can give them back to the defendant. Of course, this is not a genuine concern — the problem can be obviated simply by returning the non-responsive files to the defendant in the first place.
The Government further argues that it should be permitted to retain forensic mirror
Finally, the Government suggests that the availability of Federal Rule of Criminal Procedure 41(g) weighs in favor of the reasonableness of its actions. Rule 41(g) provides that a person aggrieved by an unlawful seizure "may move for the property's return." This rule, however, cannot shift the Government's burden under the Fourth Amendment onto the defendant. Pointing fingers at Ganias does not help the Government meet its own obligation to be reasonable.
The Government's arguments thus fail. In my view, Ganias's Fourth Amendment rights were violated when the Government unreasonably continued to hold on to his non-responsive files long after the responsive files had been extracted to reexamine when it subsequently saw need to do so.
Instead of ruling on the question of whether the Government's actions violated the Fourth Amendment, the majority relies on the good faith exception to the exclusionary rule, and concludes that suppression was not warranted because the Government relied in good faith on the 2006 warrant and that this reliance was objectively reasonable. See Maj. Op. at 200.
Even where a search or seizure violates the Fourth Amendment, the Government is not automatically precluded from using the unlawfully obtained evidence in a criminal prosecution. United States v. Julius, 610 F.3d 60, 66 (2d Cir. 2010). "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009).
To balance these interests, we have adopted the "good faith" exception, in certain circumstances, as a carve-out to the exclusionary rule. See Davis v. United States, 564 U.S. 229, 237-39, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). When a warrant is present, an agent's objectively reasonable good faith reliance on and abidance by the warrant generally makes exclusion an inappropriate remedy. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Likewise, government agents act in good faith when they perform "searches conducted in objectively reasonable reliance on binding appellate precedent." Davis, 564 U.S. at 232, 131 S.Ct. 2419. When agents act in good faith, the exclusionary rule will usually not apply. See United States v. Aguiar, 737 F.3d 251, 259 (2d Cir. 2013). "The burden is on the government to demonstrate the objective reasonableness of the officers' good faith reliance." United States v. Voustianiouk, 685 F.3d 206, 215 (2d Cir. 2012) (quoting United States v. George, 975 F.2d 72, 77 (2d Cir. 1992)).
Furthermore, evidence will be suppressed only where the benefits of deterring the Government's unlawful actions appreciably outweigh the costs of suppressing the evidence — "a high obstacle
The Government contends that it relied in good faith both on the 2003 warrant and the 2006 warrant. The majority, without supporting its holding with the 2003 warrant, concludes that the agents acted reasonably in relying on the 2006 warrant to search for evidence of Ganias's tax evasion, and that suppression therefore was not warranted. See Majority Op. at 219-23. I disagree, and would hold that neither warrant provided a good faith basis for retaining the non-responsive files long after the responsive files had been extracted.
I first turn to the 2003 warrant. The Government's retention of Ganias's non-responsive files pursuant to the 2003 warrant was hardly lawful or in good faith. The Government, in keeping the entirety of the mirror images, kept substantial amounts of "computer associated data" that did not "relat[e] to the business, financial and accounting operations of [IPM] and American Boiler." J. App. 433. This sort of retention following a "widespread seizure" was not explicitly authorized by the 2003 warrant, United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir. 2000) (quoting United States v. Matias, 836 F.2d 744, 748 (2d Cir. 1988)), and, as discussed, amounted to a general search. Likewise, the Government points to no binding appellate precedent that allows it to retain files outside the scope of a warrant when the responsive files can be feasibly extracted. Instead the Fourth Amendment baseline is that the Government may not take and then keep papers without a warrant "particularly describing ... the persons or things to be seized." U.S. Const. amend. IV.
The Government argues nonetheless that the agents had an objectively reasonable good faith belief that their post-warrant conduct was lawful, because no precedent held that they could not do what they did. The argument fails, in my view, for the precedents are absolutely clear that general warrants are unconstitutional and that government agents authorized to come into one's home to seize papers for a limited purpose may not indiscriminately seize and retain all papers instead. Any agent who professes to have the ability to do so merely because computers are involved is not acting in good faith.
Moreover, the Government's formulation of "the `good faith' exception w[ould] swallow the exclusionary rule." Davis, 564 U.S. at 258, 131 S.Ct. 2419 (Breyer, J., dissenting). The Government is essentially arguing that the absence of binding appellate precedent addressing the overseizure and retention of computer files excuses the agents' actions. But it has always been the case that agents must rely on something for their reliance to be objective. That is, officers must "learn `what is required of
More troublingly, the agents here knew what they were supposed to do — their actions were "deliberate." Davis, 564 U.S. at 238, 131 S.Ct. 2419 (quoting Herring, 555 U.S. at 144, 129 S.Ct. 695). The agents knew they were supposed to return or delete overseized data. When asked whether he was "to return those items or destroy those items that don't pertain to your lawful authority to seize those particular items" after a "reasonable period" of off-site review, the testifying agent answered, "Yes, sir." J. App. 145-46; see also id. at 428 (Ganias corroborating that the agent "assured me that those materials and files not authorized under the warrant and not belonging to American Boiler and IPM would be purged once they completed their search"). Instead of following this protocol, that agent testified that the investigators "viewed the data as the government's property, not Mr. Ganias' property." Id. at 146; see also id. at 122 ("And you never know what data you may need in the future."). In other words, the agents "knew that limits of the warrant w[ere] not be[ing] honored." United States v. Foster, 100 F.3d 846, 852 (10th Cir. 1996). This knowledge of the need to return or delete non-responsive files compels a conclusion that the agents did not rely in good faith on the 2003 warrant or any appellate precedent (binding or non-binding) and that the deterrence value of suppression here is substantial.
I next turn to the 2006 warrant. On April 24, 2006, the Government sought a warrant — seeking to search "Images of three (3) hard drives seized on November 19, 2003 from the offices of Steve M. Ganias" — to investigate him personally. J. App. 455. A magistrate judge issued the warrant, and the Government searched the mirror images.
For the purpose of deterring Fourth Amendment violations, the relevant inquiry is whether the agents acted in good faith when they committed the violation. See Leon, 468 U.S. at 916, 104 S.Ct. 3405 ("[T]he exclusionary rule is designed to
In other words, the later 2006 warrant could not cure the prior illegal retention of Ganias's data when agents did not rely on it to retain that data. A warrant is not a Band-Aid that the Government may seek when it realizes its Fourth Amendment violation has been discovered. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2015) ("When the magistrate issued the warrant, he did not endorse past activity; he only authorized future activity."). As we have previously held, "Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble." United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996).
The Government and the majority rely on a line of cases that includes United States v. Reilly, 76 F.3d 1271, and its predecessor, United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985). In Reilly, we affirmed the Thomas principle that illegally obtained evidence need not be excluded where the agents later obtained a warrant by providing a magistrate "the details of their dubious pre-warrant conduct" and where "`there was nothing more the officer could have or should have done under the[] circumstances to be sure his search would be legal.'" Reilly, 76 F.3d at 1282 (alterations omitted) (quoting Thomas, 757 F.2d at 1368). We required, however, that the officer "did not have any significant reason to believe that what he had done was unconstitutional." Id. at 1281.
In this case, the agents did not present to the magistrate judge all of "the details of their dubious pre-warrant conduct." Id. at 1282. Though the majority points out that the agents disclosed to the magistrate judge in 2006 that the mirror images were seized in November 2003, that Ganias was not then under investigation, and that the mirror images included files outside the scope of the original warrant, this information was not sufficient on its own to permit the magistrate judge to evaluate whether the relevant constitutional violation occurred. See Maj. Op. at 224. The agents did not disclose that they had segregated responsive files from non-responsive files and extracted the responsive files and that for some time they did not have other, anticipated uses for the non-responsive files. Without this information relating to whether the Government still had a legitimate use for the mirror image during the retention, it simply would not have been
Likewise, unlike in Thomas, there was more that the Government could have done prior to 2006 to ensure that its conduct was legal. See Thomas, 757 F.2d at 1368. As noted above, it could have gone to a magistrate judge much earlier for permission to retain the non-responsive computer files.
Finally, the Government did have significant reason to believe that its conduct was unconstitutional. As noted, an agent testified that he knew he was supposed to "return those items or destroy those items that d[idn't] pertain to [his] lawful authority to seize those particular items." J. App. 145-46. And any reasonable law enforcement agent would have understood that it was unreasonable to "view[ ] [private property] as the government's property" or to treat the 2003 warrant as a general warrant. Id. at 146. Furthermore, the language of the 2003 warrant clearly set parameters for what was lawful: only data "relating to" IPM and American Boiler could be kept. Id. at 433.
At bottom, in holding that the Government acted with objectively reasonable reliance on the 2006 warrant, the majority condones creative uses of government power to interfere with individuals' possessory interests and to invade their privacy. Without specifically opining on whether the Government can retain overseized, non-responsive files, the majority has crafted a formula for the Government to do just that. The Government only needs to: obtain a warrant to seize computer data, overseize by claiming files are intermingled (they always will be), keep overseized data until the however distant future, and then (when probable cause one day develops) ask for another warrant to search what it has kept. The rule that we have fashioned does nothing to deter the Government from continually retaining papers that are, though initially properly seized, not responsive to or particularly described in a warrant. Instead of deterring future violations, we have effectively endorsed them.
The Government bears the burden of proving "the objective reasonableness of the officers' good faith reliance." Voustianiouk, 685 F.3d at 215 (quoting George, 975 F.2d at 77). It has not met that burden here. To the contrary, the agents exhibited a deliberate or reckless or grossly negligent disregard for Ganias's rights, see Davis, 564 U.S. at 238, 131 S.Ct. 2419, and, in my view, the benefits of deterring the Government's unlawful actions here appreciably outweigh the costs of suppression, see Herring, 555 U.S. at 141, 129 S.Ct. 695; see also Davis, 564 U.S. at 232, 131 S.Ct. 2419; Pa. Bd. of Prob. & Parole, 524 U.S. at 364-65, 118 S.Ct. 2014.
In the discussion of lofty constitutional principles, we sometimes forget the impact that our rulings and proceedings may have on individuals and their families. Here, there has been a cloud hanging over Ganias's head for nearly thirteen years, impacting every aspect of his life and the lives of those around him. The cloud is still there now.
The wheels of justice have spun ever so slowly in this case. The Government seized Ganias's files in November 2003, nearly thirteen years ago. He was indicted, in 2008, some eight years ago. He waited two-and-a-half years for a trial, and after he was found guilty, he waited roughly
The panel issued its decision on June 17, 2014. The panel held that the Government violated Ganias's Fourth Amendment rights and rejected its reliance on the good faith exception. On August 15, 2014, the Government filed a petition for rehearing, seeking panel rehearing only, not rehearing en banc, and seeking rehearing only with respect to the good faith exception. In other words, the Government did not seek rehearing on whether the Fourth Amendment was violated, and it did not seek rehearing en banc on either issue.
Yet, on June 29, 2015, more than a year after the panel decision, more than a year after Ganias thought he had won a substantial victory, this Court, on its own initiative, elected to rehear the case en banc — with respect to both issues. The Court did so ostensibly to provide guidance in a novel and difficult area of law. But, after a year-long en banc process, no guidance has come forth. The Court took on an issue at Ganias's expense and then quickly retreated, relying instead on an issue that was not worthy of en banc review.
Ganias's non-responsive files are in the Government's custody still. What began nearly thirteen years ago as an investigation by the Army into two of Ganias's business clients somehow evolved into an unrelated investigation by the IRS into Ganias's personal affairs, largely because the Government did precisely what the Fourth Amendment forbids: it entered Ganias's premises with a warrant to seize certain papers and indiscriminately seized — and retained — all papers instead.
I respectfully dissent.
Amici Curiae
J.A. 433-34.
United States v. Ganias, 791 F.3d 290 (2d Cir. 2015) (mem.).
We agree with the dissent that "the precedents are absolutely clear that general warrants are unconstitutional." Dissent at 237. To the degree that the dissent would go further, however, and find it "absolutely clear" to a reasonable government agent in 2005 that the retention of a lawfully acquired mirror during the pendency of an investigation and the subsequent search of data on that mirror pursuant to a second warrant would implicate the ban on general warrants, we respectfully disagree.
Apart from this citation to Kerr and to two student notes (which reach differing conclusions about the merits of the panel opinion), the articles the dissent cites (as is evident from the carefully worded parentheticals the dissent itself provides) are not evaluations of the original panel opinion, but instead provide largely descriptive accounts of the opinion and its relation to other case law in the context of making other points. The signed article that comes the closest to providing a normative critique of the panel's opinion concludes that "perhaps the panel's answer is broadly the right answer," but rejects the panel's — and the dissent's — reasoning. Stephen E. Henderson, Fourth Amendment Time Machines (and What They Might Say About Police Body Cameras), 18 U. Pa. J. Const. L. 933, 948 (2016) (emphasis added); see id. at 947 (concluding that, because "in 2003 and in 2006 the government obtained a warrant demonstrating particularized suspicion towards Ganias's data, and in each instance agents thereafter only looked for the responsive data," it was inapt for the original panel to conclude that the Government's position would transform a warrant for electronic data into a "general warrant"). We do not opine on these issues here, but we see no scholarly consensus on the complicated questions implicated in this case that would suggest caution is ill-advised in a matter where these questions need not be answered to reach a resolution. Caution, although not always satisfying, is sometimes the most appropriate approach.
