VoteKansas.org

Where waving a weapon was reported to 911, handcuffs during a Terry stop and frisk was reasonable and not an arrest. United States v. Moore, 2012 U.S. Dist. LEXIS 71023 (E.D. Mich. May 22, 2012):

Defendant argues his seizure ripened into an arrest the moment he was handcuffed and thus required probable cause. (Def.'s Mot. at 6.) This Court disagrees. The Sixth Circuit considered a similar argument in Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 814 (6th Cir. 1999). In Houston, the court observed that "the use of handcuffs [does not] exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution." Id. at 815 (citing cases). It concluded that, because the defendant officers reasonably believed that the individuals stopped had been involved in a shooting, "their use of handcuffs and their detention of the men in the [police] cruisers were both reasonably necessary to protect the officers' safety during the investigation ... [and] were therefore 'reasonably related' to the investigation that warranted the initial stop." Id. The same is true here. Based upon the facts provided to them from the in-person interview with the 911 caller, the officers that initially stopped Defendant had a reasonable belief that he was intoxicated, armed, and dangerous. Thus, their use of handcuffs before conducting a pat-down for weapons was reasonably necessary to protect their safety during the investigation that warranted the initial stop.

Junichi P Semitsu, Arresting Development: Facebook Searches and the Information Super Highway Patrol, 65 Ark. L. Rev. 99 (2012)

Caren Myers Morrison, Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment, 65 Ark. L. Rev. 133 (2012)

These aren't available for free on the law review's website yet.

Crains New York: Big glitch in feds’ case against Spongetech by Aaron Elstein:

The government has majorly messed up its seemingly airtight case against the chief executive of Spongetech Delivery Systems, a New York-based maker of SpongeBob SquarePants sponges that allegedly faked 99% of its sales.

Last week, a federal judge ruled that reams of emails and other potentially damaging evidence couldn’t be used in court because the government took too long to examine the bounty.

My prior post on the case is here.

The police violated a juvenile rape suspect’s Fourth Amendment rights by getting his mother’s consent to a penile swab for DNA. The state’s showing of exigency was insufficient. This was harmless error here, however, where the victim ID’d him and his DNA was left on her and on a ski mask. Lee v. State, 2012 Ind. App. LEXIS 229 (May 17, 2012):

The absence of evidence that officers actually believed DNA was about to be destroyed might be due to a lack of evidence that would sufficiently support the State's appellate claim that the officers did so believe, or it might be due to Lee's failure to object and thereby press the State to present evidence thereof. In any event, our narrowly tailored holding is that sufficient evidence of exigent circumstances was not presented at trial. Because it is the State's burden to present such evidence to overcome a presumption of unreasonableness, its failure to overcome that burden renders the admission of such evidence erroneous without another valid justification.

On appeal, the State compares this case to two cases from other jurisdictions in which officers apprehended suspects of sexual assaults soon after the crimes occurred and obtained penile swabs of the suspects in a manner such that appellate courts later held the swabs justified by exigent circumstances. See Kaliku v. U.S., 994 A.2d 765 (D.C. Cir. 2010); Ontiveros v. Texas, 240 S.W.3d 369 (Tex. App. 2007), petition stricken. We agree that the offenses under investigation in Kaliku and Ontiveros are similar to this case, and that the officers faced a similar situation in those cases as the officers did here. We conclude differently from Kaliku and Ontiveros because the evidence presented at Lee's trial regarding officers' thoughts and actions do not demonstrate they actually believed Lee might destroy any DNA evidence on his penis.

. . .

Detective Cress's short statement that he would not allow Lee to wash his hands, without further elaboration, pales in comparison to the evidence presented in Kaliku and Ontiveros, and is insufficient to overcome the State's burden to demonstrate officers actually held an objective, reasonable belief that evidence was about to be destroyed.9

9 Further, it should be noted that if officers wanted Lee's DNA, exigent circumstances certainly did not exist because Lee's DNA would not change and officers could have obtained a warrant and obtained his DNA later.

Five search warrants were executed after wiretaps. Defendant had standing as to his business and home, but not three others. There is no co-conspirator exception to standing for them (Padilla). There was “strong evidence” of probable cause supporting the search warrants, so the motion is denied as to all five. United States v. Kazarian, 2012 U.S. Dist. LEXIS 70050 (S.D. N.Y. May 18, 2012).*

Defendant had a “full and fair opportunity to litigate” his search claim which he waived by his guilty plea. The after the fact discovery by defendant that a witness on the search issue was not completely believable wasn’t good enough to undermine the plea. Balleza v. United States, 2012 U.S. Dist. LEXIS 69537 (N.D. Tex. May 17, 2012).*

Defendant’s 2255 claim that defense counsel failed to challenge warrantless searches fails without an allegation as to what those searches were and how he was prejudiced by it. Fuller v. United States, 2012 U.S. Dist. LEXIS 70813 (N.D. Ill. May 22, 2012).*

Yosemite National Park officers came to a campsite to investigate disorderly conduct and a traffic offense and ordered everybody to sit at a table and show their hands. One lady refused to be patted down and then was threatened with being Tasered, and that was unreasonable under the circumstances. She was targeted only because she was with others who might be suspects. United States v. Mazzetti, 2012 U.S. Dist. LEXIS 69922 (E.D. Cal. May 17, 2012)*:

Based on the record before the Court, including the primary concern for the personal freedom of individuals who are suspected of having done nothing more than to have committed, and completed, a misdemeanor, the rangers had the right and duty to approach the group and question its individual members regarding possible criminal activity. However, they lacked the right to conduct an investigatory stop, i.e, restrain the liberty, of Defendant. They did restrain her. The restraints violated protections afforded her under the Fourth Amendment to the United States Constitution.

The Court does not discount nor denigrate the reasonableness and sincerity of Ranger Bellino's belief that the restraints on Defendant's freedom were necessary to ensure safety of himself and his fellow rangers dealing with members of a group which outnumbered the Rangers. The Court respects such concerns. History has shown that law enforcement personnel are regularly exposed to wholly unexpected, and all too often deadly, threats. However, our Constitution demands that such concerns be balanced against citizens' rights to be free of unreasonable seizure of their persons. Thus, law enforcement may not take action to restrain the personal liberties of individuals based on purely theoretical safety concerns. Here, when Ranger Bellino arrived, nothing suggested to him that any member of the group had engaged in any serious crime or threat to public safety or posed an ongoing threat to Ranger Bellino or anyone else. There was no justification for using the threat of force to compel Defendant's continued presence.

The State of Texas claimed a beach easement on plaintiff’s beachfront property following Hurricane Rita which moved the vegetation line back and put the house on the beach. The State's effort to remove the house was a Fourth Amendment violation. Severance v. Patterson, 07-20409 (5th Cir. May 21, 2012) (per curiam):

The Texas Supreme Court answered our certified questions in this case, see Severance v. Patterson, 566 F.3d 490, 503-04 (5th Cir. 2009), by declaring that Texas law does not recognize a “rolling easement” created by avulsive events affecting the dry beach of Galveston’s West Beach. Severance v. Patterson, No. 09-0387, Tex S.Ct. April 19, 2012, op. on reh. For the panel majority, this answer reifies the claim of appellant Severance to an “unreasonable” seizure violative of the Fourth Amendment in the State’s assertion of an easement (and related regulatory violations) on her beachfront property following Hurricane Rita. (Judge Wiener continues to dissent on this portion of the prior and present dispositions.)

Because the potential existence of this constitutional claim is now confirmed, the district court’s judgment against Severance predicated on Fed. R. Civ. P. 12(b)(1) and (6) must be reversed.

Craig M. Bradley, Is the Exclusionary Rule Dead? 103 J. Crim. L & Criminology 1 (2012):

In three recent decisions, Hudson v. Michigan, Herring v. United States, and last Term’s Davis v. United States, the Supreme Court has indicated a desire to severely restrict the Fourth Amendment exclusionary rule. A majority of the Justices wants to limit its application to cases where the police have violated the Fourth Amendment purposely, knowingly, or recklessly, but not where they have engaged in “simple, isolated negligence” or where negligence is “attenuated” from the discovery of the evidence. They have further suggested that evidence should not be excluded where the police have behaved as reasonable policemen, using the approach from United States v. Leon.

The Court’s new approach, based on the culpability of the police, is subjective, yet the Court insists that it does not probe the police’s mind. The new approach seems to reject negligence as the basis of exclusion, yet Leon is a negligence-based approach. The new approach assumes that “reckless” behavior can be deterred more readily than negligent behavior, but that is not obvious.

This Article reviews Hudson, Herring, and Davis, as well as the court of appeals cases that have applied Herring. It suggests that the Supreme Court has not eliminated the exclusionary rule and argues that the rule should still be applied in cases of “substantial” as opposed to “simple isolated” negligence—that is, when negligence has substantially interfered with a suspect’s privacy rights, such as through an illegal arrest or an illegal search of his car or house. It notes that none of the three cases decided by the Court involved such a substantial intrusion. It concludes, through a careful reading of the three cases, as well as examination of successful defense appeals in the courts of appeals, that the exclusionary rule, though limited, is neither dead nor unacceptably constrained.

Where the arrest reports show defendant consented to a search, the defendant must file an affidavit in opposition to get a hearing to show a disputed fact. United States v. Rosario, 2012 U.S. Dist. LEXIS 69240 (S.D. N.Y. May 11, 2012).*

An AT&T technician visiting defendant’s house and working on his internet connection accessed the computer to see if it would connect to the internet and saw child pornography. This was not a government search. United States v. Jurek, 2012 U.S. Dist. LEXIS 70242 (N.D. Ohio May 21, 2012).*

Defendant was stopped on a motorcycle on the closed Quantico Marine base by a U.S. Marines police officer. The officer first thought he might be lost, but his demeanor suggested criminal activity of some sort, and the frisk of his back pack after he admitted there was a knife in there and had no DL was reasonable. United States v. Cooper, 2012 U.S. Dist. LEXIS 70001 (E.D. Va. May 18, 2012).*

The search warrant sought computer records for 2007, but the government’s computer search intentionally wasn’t limited and found incriminating records from 2003 and 2004. The government’s failure to limit the search violated the terms of the search warrant. Also, one defendant who had a desk and a computer in a common area had an expectation of privacy in both because nobody else used them. Moreover, the computer was password protected. United States v. Reeves, 2012 U.S. Dist. LEXIS 68962 (D. N.J. May 17, 2012):

In particular, Special Agent Cassin testified that he had the ability to limit his search to the calendar year 2007 and search for documents that were created and modified in 2007. He also had the ability to search for the year "2007" or "/07," etc., in the body of the documents using a keyword search. Special Agent Cassin, however, testified that he did nothing to so limit his search and instead searched all the files on the Harbor House computers without regard to their date. Specifically, Special Agent Cassin disregarded the scope of the warrant by engaging in broad keyword searches of all the electronic files on the computers.

This is unreasonable and violates the Fourth Amendment. It is evident that Special Agent Cassin took no efforts to comply with the temporal scope of the warrant and disregarded the express date limitation contained therein. Special Agent Cassin did not conduct his search in a manner that minimized unwarranted intrusions upon privacy and his broad keyword search was more akin to "'general, exploratory rummaging" in Harbor House's computer files rather than a particular search in accordance with the express limitations of the search warrant. Andresen v. Maryland, 427 U.S. at 481. If the government felt they had enough probable cause to justify a search of Harbor House computers for all documents related to oysters and the Reeves Brothers, which is essentially what the government did, then the government needed to re-apply for a new warrant or put forth sufficient probable cause for such a broad search in their initial application. The government did neither in this case and thus their search is unreasonable as to the pre-2007 documents.

The government's reliance on United States v. Stabile, 633 F.3d 219, 241-42 (3d Cir. 2011) is misplaced. In Stabile, the government inadvertently found child pornography files on the defendant's computer while searching the computer for evidence of financial fraud. The discovery of the child pornography was inadvertent and immediately apparent due to the lurid names of the electronic files. Such files containing child pornography were in plain view of the searching agents and could thus be seized as evidence of crime.

The instant action is clearly distinguishable. There was no inadvertence by the government in finding the 2003 and 2004 incriminating documents at issue here. These documents would not have been retrieved if the search was limited pursuant to the terms of the search warrant which only authorized the government to search for documents created or modified from January 1, 2007 to December 31, 2007. The discovery of these two 2003 and 2004 documents was the result of the government's overly broad keyword search. ...

Plaintiff is civilly committed to the BOP having been found not guilty by reason of insanity in 2003 for an attempted airplane hijacking. The court concludes the DNA Act applies to him. Commey v. United States, 2012 U.S. Dist. LEXIS 70425 (D. Mass. May 21, 2012):

No court has addressed the constitutionality of the DNA Act as applied to individuals civilly committed to BOP custody after being found not guilty by reason of insanity. In Weikert, the First Circuit applied the general Fourth Amendment totality of the circumstances analysis, balancing Weikert's expectation of privacy against the government's interest in taking his DNA. 504 F.3d at 11. Applying this analysis to Commey, civilly committed persons have a diminished expectation of privacy. Both the Supreme Court and First Circuit have compared the liberty interests of civilly committed persons to those of pretrial detainees. See Youngberg v. Romeo, 457 U.S. 307, 320 (1982); Davis v. Rennie, 264 F.3d 86, 102, 108 (1st Cir. 2001) (applying to civilly committed persons the legal standard for Fourth Amendment seizure claims brought by pretrial detainees). The Eighth Circuit has explicitly held that, when considering whether a particular search violates the Fourth Amendment, civilly committed persons have the same expectation of privacy as pretrial detainees. See Serna v. Goodno, 567 F.3d 944, 948-49 (8th Cir. 2009). In Mitchell, the Third Circuit balanced pretrial detainees' expectation of privacy against the government's interest in taking their DNA, and held that the DNA Act does not violate pretrial detainees' Fourth Amendment rights. 652 F.3d at 416.

Based on this caselaw, the court concludes that the government's important interests in monitoring and rehabilitating civilly committed persons, solving crimes, and exonerating innocent individuals outweigh Commey's privacy interests, given his status as a civilly committed person, "the relatively minimal inconvenience occasioned by a blood draw, and the coding of genetic information that, by statute, may be used only for purposes of identification." Weikert, 504 F.3d at 14.

Therefore, the DNA Act as applied to Commey does not violate the Fourth Amendment.

Defendant’s arrest for counterfeiting, for which there was clearly probable cause, justified a search incident of his backpack. There was also concern for officer safety. United States v. Pittman-Wright, 2012 U.S. Dist. LEXIS 69347 (N.D. Cal. May 17, 2012).*

Consent search and false arrest claims fail on the merits for valid consent and an arrest warrant. Southerland v. Garcia, 2012 U.S. App. LEXIS 10020 (2d Cir. May 18, 2012).*

There was probable cause for issuance of this search warrant in a bank robbery case based on the video of the robbery, an anonymous caller, and surveillance of the defendant’s house. Defendant’s assertion that the color of the house was slightly off and other houses in the neighborhood could have been described as well wasn’t sufficient to overcome the warrant. The suspect vehicle was parked in the driveway. United States v. Allen, 2012 U.S. Dist. LEXIS 68902 (W.D. Mo. April 24, 2012),* adopted 2012 U.S. Dist. LEXIS 68901 (W.D. Mo. May 17, 2012).*

NYTimes Editorial: The Right to Record:

The Civil Rights Division of the Justice Department took an important stand last week, declaring that citizens have a First Amendment right to videotape the actions of police officers in public places and that seizure or destruction of such recordings violates constitutional rights.

The Justice Department made the statement in a federal lawsuit brought against the Baltimore Police Department by Christopher Sharp, who used his cellphone to take video of the police arresting and beating a friend at Pimlico on the day of the 2010 Preakness. The officers took Mr. Sharp’s cellphone while he was recording and wiped the phone clean of all videos before returning it to him.

The Courts of Appeals for the First and Seventh Circuits have wisely found that the Constitution protects the right to videotape police officers while they perform official duties. The video taken by another witness of the beating at Pimlico shows that the right to record is crucial to holding police accountable for their actions.

Business Insider: I Spy An Occupy: Obama’s DHS Surveils Legit Protesters:

Remember the Occupy Movement? Since last November, when the NYPD closed the Zuccotti Park encampment in downtown Manhattan-–the Movement’s birthplace and symbolic nexus—-Occupy’s relevance has seriously dwindled, at least as measured by coverage in the mainstream media. We’re told that this erosion is due to Occupy’s own shortcomings—-an inevitable outcome of its disjointed message and decentralized leadership.

While that may be the media’s take, the U.S. Government seems to have a different view.

If recent documents obtained by the Partnership for Civil Justice Fund (PCJF) are any indication, the Occupy Movement continues to be monitored and curtailed in a nationwide, federally-orchestrated campaign, spearheaded by the Department of Homeland Security (DHS).

. . .

The right to public assembly is a central component of the First Amendment. The Fourth Amendment is supposed to protect Americans from warrantless searches—with the definition of “search” expanded in 1967 to include electronic surveillance, following the Supreme Court’s ruling in Katz v. United States. Assuming the Occupy protesters refrain from violence—and the vast majority do, in accord with a stated tenet of the Occupy movement—the movement’s existence is constitutionally protected, or should be.

The DHS’s monitoring, documenting, and undermining of protesters may in fact violate the First Amendment. In a recent piece for Dissent Magazine, sociologist James B. Rule explains the fundamental importance of a movement like Occupy in the American political landscape.

Fierce GovernmentIT: Surveillance through GPS is not the same as using cellular tower data, say law enforcement officials by Molly Bernhart Walker:

The boundaries of surveillance are being called into question as the law enforcement community seeks continued warrantless access to electronically-generated location data while privacy advocates say a January 2012 Supreme Court case means all geolocation data is protected by the Fourth Amendment.

In the wake of the case (.pdf), United States v. Antoine Jones, two congressmen--Rep. Jason Chaffetz (R-Utah) and Bob Goodlatte (R-Va.)--have proposed a bill (H.R. 2168 [.pdf]) that would require law enforcement obtain a warrant before accessing any geolocation data. The Jones case ruled that the FBI could not attach a Global Positioning System device to a car without a warrant.

Defendant had the burden of showing his reasonable expectation of privacy in heavily fire damaged premises, and he showed he retained a reasonable expectation of privacy in the basement office area suffering only water and smoke damage. The first floor was open to the world, but the basement was not and it was “perilous” to even attempt to get to it. United States v. Rahman, 2011 U.S. Dist. LEXIS 155131 (W.D. Wis. November 10, 2011):

The court concludes that when it comes to determining Rahman's expectation of privacy, the circumstances present at the time of the search control. On the date of search, from the perspective of the investigators at the scene and Rahman himself, Rahman was the valid lease-holder of the property. Subsequent actions, even if characterized as retroactive so as to cover the time of the searches, cannot terminate a reasonable expectation of privacy any more than some after-the-fact paperwork could serve to retroactively create a reasonable expectation of privacy where none had existed.

Considering all the relevant factors, although the court considers it to be a very close call, the court concludes that the nature and the extent of the damage affecting the basement was not so extensive so as to eliminate any reasonable expectation of privacy in the basement. Entering the basement would have violated the city's condemnation order but the court cannot easily dismiss the fact that "private effects ... remain[ed] on the fire-damaged premises," Tyler, 436 U.S. at 505, which in this case included items such as receipts, (Docket No. 31 at 128; see also Ex. D-6 (depicting toolset)). Therefore, it is the conclusion of this court that a person who exhibits an actual or subjective expectation of privacy in the basement of the destroyed restaurant would have an interest that society should recognize as reasonable.

Defendant’s stepdaughter who was at best an overnight guest at defendant’s house just passing through on a trip was not able to legally consent to a search of the house. When the police got there looking for a gun, they only knew defendant lived there, and they were looking around for a bystander who knew more. Then they found out about her, but they made no effort to determine her status in relation to the house. [Guest status here wouldn't be enough, but the court doesn't have to go that far. However, the constitutional violation was harmless based on all the evidence.] State v. Pike, 2012 Tenn. Crim. App. LEXIS 317 (May 16, 2012).

A judge in one county could not issue a search warrant to be executed in another county under Texas law. Sanchez v. State, 2012 Tex. Crim. App. LEXIS 693 (May 16, 2012). [Note: This is a state law issue because the Fourth Amendment doesn’t care about county lines.]

The officer’s testimony that the defendant failed to stop for a crosswalk was not unsupported by the record, so the stop of the vehicle was justified. McMahan v. State, 2012 Tex. App. LEXIS 3912 (Tex. App. – Houston (14th Dist.) May 17, 2012) (on rehearing).

Rodney Balko on HuffPo: Under Asset Forfeiture Law, Wisconsin Cops Confiscate Families' Bail Money (Wisconsin has no bailbondsmen, so cash, check, or credit card required):

When the Brown County, Wis., Drug Task Force arrested her son Joel last February, Beverly Greer started piecing together his bail.

She used part of her disability payment and her tax return. Joel Greer's wife also chipped in, as did his brother and two sisters. On Feb. 29, a judge set Greer's bail at $7,500, and his mother called the Brown County jail to see where and how she could get him out. "The police specifically told us to bring cash," Greer says. "Not a cashier's check or a credit card. They said cash."

So Greer and her family visited a series of ATMs, and on March 1, she brought the money to the jail, thinking she'd be taking Joel Greer home. But she left without her money, or her son.

A drug dog alerted on the cash, which we all know means nothing.

Steven Kessler, a New York-based forfeiture attorney and the author of the legal treatise "Civil and Criminal Forfeiture: Federal and State Practice," said he had never heard of simply confiscating bail. "It's abhorrent. You can reject bail if you suspect the money is dirty. But you don't simply take it and hand it over to the police department."

Virginia attorney David Smith, who also wrote a book on forfeiture, says he has seen other cases in which authorities have confiscated bail money, but adds, "No courts have ordered forfeiture simply on the basis of a dog alert. There has to be other evidence."

Forfeitures like these may not hold up in court, but failed cases wouldn't necessarily discourage police departments from continuing the practice. If the defendant never challenges the seizure, the department generates revenue. If the defendant challenges and wins, the department loses little.

The penis swabbing of defendant in the jail after his arrest for rape as a search incident without a warrant violated the Fourth Amendment, but it was harmless beyond a reasonable doubt because of the DNA evidence found in the rape victim’s underwear. People v. Fulton, 2012 Cal. App. LEXIS 585 (3d Dist. May 18, 2012):

Here, the seizure of the evidence from the defendant's penis is problematic. It involved a major intrusion on the defendant's dignity. There is a dispute in authority about the extent to which on proper showing the police can search intimate areas of an arrestee's person. (3 LaFave, Search and Seizure (4th ed. 2004) Post-Arrest Detention, § 5.3(c), pp. 168-170 & fns. 114, 116; id. 2011-2012 Supp., p. 32.) Yet the prosecution, bearing the burden of justifying the warrantless seizure, made no attempt to establish that the evidence would have been destroyed absent the warrantless seizure. At best, the People want us to assume that such is the case. That is no way to justify a warrantless seizure of evidence.

The stipulated facts established only what happened -- evidence was taken from the defendant's penis without a warrant. The prosecution did not put on evidence concerning the destructibility of the evidence or even that the police had a good-faith belief, or any kind of belief, that the evidence could be destroyed absent the warrantless seizure. (See Schmerber v. California, supra, 384 U.S. at pp. 770-771 [reasonable belief that evidence would be destroyed may justify warrantless seizure].) It should go without saying that the attorneys' arguments were not evidence. (See CALCRIM No. 222.) Therefore, we are left with a request by the Attorney General to condone a warrantless seizure based on speculation or supposition.

The Attorney General's argument that this was merely a search incident to arrest does not fare any better. Seizure of evidence from an arrestee's genitalia is a major intrusion on the arrestee's dignity. To seize evidence from a person's genitalia, as part of a search incident to arrest and without a warrant, there must be an exigency justifying the seizure, such as officer safety or imminent destruction of evidence. (See Schmerber v. California, supra, 384 U.S. at pp. 770-771; see also State v. Lussier (Minn.Ct.App. 2009) 770 N.W.2d 581, 589-590.) As noted, there was no such showing here.

While we cannot agree with the Attorney General that the warrantless seizure of evidence from the defendant's penis was justified, we also disagree with the defendant that this must result in reversal of the judgment against him. Any error in admitting the evidence obtained from the defendant's penis was harmless beyond a reasonable doubt considering the credibility of the victim and the evidence obtained from the victim's underwear.

The government seized 61 hard drives to copy and copied four others then took its time analyzing them. The court finds the delay was unreasonable and was a “flagrant disregard” of the rights of the owner of the computers and target of the search and suppresses. United States v. Metter, 2011 U.S. Dist. LEXIS 155130 (E.D. N.Y. May 17, 2011) [apparently should be a 2012 citation]:

This conclusion leaves the Court with a final determination to make: What is the appropriate remedy in this case? It is well-settled that "[g]overnment agents 'flagrantly disregard' the terms of a warrant so that wholesale suppression is required only when (1) they effect a 'widespread seizure of items that were not within the scope of the warrant,' ... and (2) do not act in good faith." United States v. Liu, 239 F. 3d 138, 140 (2d Cir. 2000) (quoting United States v. Matias, 836 F. 2d 744, 748 (2d Cir. 1988)). "The rationale for blanket suppression is that a search that greatly exceeds the bounds of a warrant and is not conducted in good faith is essentially indistinguishable from a general search." Liu, 239 F. 3d at 141. "[T]o satisfy the first prong of the two-part test described above, the search conducted by government agents must actually resemble a general search." Id. Thus, "the extreme remedy of blanket suppression should only be imposed in the most extraordinary of cases." United States v. Foster, 100 F. 3d 846, 852 (10th Cir. 1996) (internal quotation marks omitted.)

The lack of good faith by the government can be inferred from its conduct in this case. In the affidavits in support of the search warrants issued in this case, the government promised to review the evidence seized offsite to determine whether any evidence fell outside the scope of the warrants. (See McGuire Home Aff. ¶ 58; Carrano Aff. ¶ 60; McGuire Email Aff. ¶ 130.) The government then failed to commence the review, despite repeated requests from defense counsel and directions from the Court to do so. In fact, the government seemed shocked that the Court would require such a review, and, as mentioned above, threatened to provide all of the evidence seized and imaged to each defendant in the case, without conducting any such review. (See 2/4/11 S/C Tr. 24-26, 29-30; 2/28/11 Gov't Letter at 2.) The government's own conduct and statements indicate that it had no intention of fulfilling its obligations as promised in the search warrants. Nor has the government presented any evidence or arguments to the effect that it failed to fulfill this obligation due to limited resources, such as it has argued in other cases.

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.

Udpate: I've looked a couple of times today to find the order, and I can't without paying for it. Even then, I don't have the capability of posting it as a pdf yet (well, never asked to learn). At any rate, here is a link from the USAO about the case which, of course, doesn't mention this order. It does show, however, a status conference for this week as to Mr. Metter, and all the other defendants have apparently pled guilty. One of the letter briefs by the government appears here.