United States v. Ganias , 755 F.3d 125 ( 2014 )

12-240-cr
United States v. Ganias
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2012
(Argued: April 11, 2013 Decided: June 17, 2014)
Docket No. 12-240-cr
UNITED STATES OF AMERICA,
Appellee,
v.
STAVROS M. GANIAS,
Defendant-Appellant.
Before:
HALL and CHIN, Circuit Judges,
and RESTANI, Judge.*
Appeal from a judgment of the United States District Court for the
District of Connecticut convicting defendant-appellant, following a jury trial, of
*
The Honorable Jane A. Restani, of the United States Court of International
Trade, sitting by designation.
tax evasion. Defendant-appellant appeals on the grounds that: (1) the district
court (Thompson, J.) erred in denying his motion to suppress his personal
computer records, which had been retained by the Government for more than
two-and-a-half years after it copied his computer hard drives pursuant to a
search warrant calling for the seizure of his clients' business records; and (2) the
district court (Burns, J.) abused its discretion in failing to order a new trial where
a juror posted comments about the trial on his Facebook page and became
Facebook friends with another juror during the trial. We find no abuse of
discretion as to the second issue, but we conclude, however, that defendant-
appellant's Fourth Amendment rights were violated by the unauthorized
retention of his personal files. Accordingly, we vacate the judgment and remand
for further proceedings.
VACATED and REMANDED.
Judge Hall concurs in part and dissents in part in a separate opinion.
SARALA V. NAGALA, Assistant United States Attorney
(Anastasia E. King and Sandra S. Glover, Assistant
United States Attorneys, on the brief), for David B.
Fein, United States Attorney for the District of
Connecticut, New Haven, Connecticut, for
Appellee.
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STANLEY A. TWARDY, JR. (Daniel E. Wenner, on the brief),
Day Pitney LLP, Stamford, Connecticut, for
Defendant-Appellant.
CHIN, Circuit Judge:
In this case, defendant-appellant Stavros M. Ganias appeals from a
judgment convicting him, following a jury trial, of tax evasion. He challenges the
conviction on the grounds that his Fourth Amendment rights were violated when
the Government copied three of his computer hard drives pursuant to a search
warrant and then retained files beyond the scope of the warrant for more than
two-and-a-half years. He also contends that his right to a fair trial was violated
when, during the trial, a juror posted comments about the case on his Facebook
page and "friended" another juror. We reject the second argument but hold that
the Government's retention of the computer records was unreasonable.
Accordingly, we vacate the conviction and remand for further proceedings.
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STATEMENT OF THE CASE
A. The Facts1
In the 1980s, after working for the Internal Revenue Service ("IRS")
for some fourteen years, Ganias started his own accounting business in
Wallingford, Connecticut. He provided tax and accounting services to
individuals and small businesses. In 1998, he began providing services to James
McCarthy and two of McCarthy's businesses, American Boiler and Industrial
Property Management ("IPM"). IPM had been hired by the Army to provide
maintenance and security at a vacant Army facility in Stratford, Connecticut.
In August 2003, the Criminal Investigative Command of the Army
received a tip from a confidential source that individuals affiliated with IPM were
engaging in improper conduct, including stealing copper wire and other items
from the Army facility and billing the Army for work that IPM employees
performed for American Boiler. The source alleged that evidence of the
wrongdoing could be found at the offices of American Boiler and IPM, as well as
1
The facts relevant to the issues on appeal are largely undisputed and are
drawn from the testimony at the hearing on Ganias's motion to suppress, the decision of
the district court (Thompson, J.) denying the suppression motion, and the transcript of
the trial.
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at the offices of "Steve Gainis [sic]," who "perform[ed] accounting work for IPM
and American Boiler."2
Based on this information, the Army commenced an investigation.
Army investigators obtained several search warrants, including one to search the
offices of Ganias's accounting business. The warrant, issued by the United States
District Court for the District of Connecticut and dated November 17, 2003,
authorized the seizure from Ganias's offices of:
All books, records, documents, materials, computer
hardware and software and computer associated data
relating to the business, financial and accounting
operations of [IPM] and American Boiler . . . .
The warrant was executed two days later. Army computer
specialists accompanied investigators to Ganias's offices and helped gather the
electronic evidence. The agents did not seize Ganias's computers; instead, the
computer specialists made identical copies, or forensic mirror images, of the hard
drives of all three of Ganias's computers. As a consequence, the investigators
copied every file on all three computers -- including files beyond the scope of the
warrant, such as files containing Ganias's personal financial records. Ganias was
2
The record reflects that Ganias, whose first name is Stavros, was often
referred to as "Steve."
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present as the investigators collected the evidence, and he expressed concern
about the scope of the seizure. In response, one agent "assured" Ganias that the
Army was only looking for files "related to American Boiler and IPM."
Everything else, the agent explained, "would be purged once they completed
their search" for relevant files.
Back in their offices, the Army computer specialist copied the data
taken from Ganias's computers (as well as data obtained from the searches of the
offices of IPM and American Boiler) onto "two sets of 19 DVDs," which were
"maintained as evidence." Some eight months later, the Army Criminal
Investigation Lab finally began to review the files.
In the meantime, while reviewing the paper documents retrieved
from Ganias's offices, the Army discovered suspicious payments made by IPM to
an unregistered business, which was allegedly owned by an individual who had
not reported any income from that business. Based on this evidence, in May
2004, the Army invited the IRS to "join the investigation" of IPM and American
Boiler and gave copies of the imaged hard drives to the IRS so that it could
conduct its own review and analysis. The Army and the IRS proceeded,
separately, to search the imaged hard drives for files that appeared to be within
the scope of the warrant and to extract them for further review.
-6-
By December 2004, some thirteen months after the seizure, the Army
and IRS investigators had isolated and extracted the computer files that were
relevant to IPM and American Boiler and thus covered by the search warrant.
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.
They did not, however, purge or delete the non-responsive files. To
the contrary, the investigators retained the files because they "viewed the data as
the government's property, not Mr. Ganias's property." Their view was that
while items seized from an owner will be returned after an investigation closes,
all of the electronic data here were evidence that were to be protected and
preserved. As one agent testified, "[W]e would not routinely go into DVDs to
delete data, as we're altering the original data that was seized. And you never
know what data you may need in the future. . . . I don't normally go into
electronic data and start deleting evidence off of DVDs stored in my evidence
room." The computer specialists were never asked to delete (or even to try to
delete) those files that did not relate to IPM or American Boiler.
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In late 2004, IRS investigators discovered accounting irregularities
regarding transactions between IPM and American Boiler in the paper
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 of 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 DVDs copied from Ganias's hard drives.
The case agent was aware, however, that Ganias's personal financial records
were beyond the scope of the November 2003 warrant, and consequently she did
not believe that she could review the non-responsive files, even though they were
already in the Government's possession.
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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
images of Ganias's personal financial records taken in 2003. At that point, the
images had been in the Government's possession for almost two-and-a-half
years. Because Ganias had altered the original files shortly after the Army
executed the 2003 warrant, the evidence obtained in 2006 would not have existed
but for the Government's retention of those images.
B. Procedural History
1. The Indictment
In October 2008, a grand jury indicted Ganias and McCarthy for
conspiracy and tax evasion. The grand jury returned a superseding indictment in
December 2009, containing certain counts relating to McCarthy's taxes and two
counts relating to Ganias's personal taxes. The latter two counts were asserted
only against Ganias. The case was assigned to Chief Judge Alvin W. Thompson.
2. The Motion to Suppress
In February 2010, Ganias moved to suppress the computer files that
are the subject of this appeal. In April 2010, the district court (Thompson, J.) held
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a two-day hearing and, on April 14, 2010, it denied the motion, with an indication
that a written decision would follow. On June 24, 2011, the district court filed its
written decision explaining the denial of Ganias's motion to suppress. See United
States v. Ganias, No. 3:08 Cr. 224, 2011 WL 2532396 (D. Conn. June 24, 2011).
3. The Trial
In April 2010, the case was transferred to Judge Ellen Bree Burns for
trial. In May 2010, the district court severed the two counts against Ganias for tax
evasion with respect to his personal taxes from the other charges.3
Trial commenced on March 8, 2011, with jury selection, and
testimony was scheduled to begin on March 10, 2011. At 9:34 p.m. on March 9,
the evening before the start of the evidence, one of the jurors, Juror X, posted a
comment on his Facebook page: "Jury duty 2morrow. I may get 2 hang
someone...can't wait."
Juror X's posting prompted responses from some of his online
"friends," including: "gettem while the're young !!!...lol" and "let's not be to hasty.
Torcher first, then hang! Lol." During the trial, Juror X continued to post
comments about his jury service, including:
3
All the other counts were later dismissed.
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March 10 at 3:34 pm:
Shit just told this case could last 2 weeks..
Jury duty sucks!
March 15 at 1:41 pm:
Your honor I object! This is way too
boring.. somebody get me outta here.
March 17 at 2:07 pm:
Guiness for lunch break. Jury duty ok
today.
During the second week of trial, Juror X became Facebook friends
with another one of the jurors.
On April 1, 2011, the jury convicted Ganias on both counts. Later
that evening, at 9:49 pm, Juror X posted another comment on his Facebook page:
"GUILTY:)." He later elaborated:
I spent the whole month of March in court. I do believe
justice prevailed! It was no cake walk getting to the
end! I am glad it is over and I have a new experience
under my belt!
4. The Motion for a New Trial
On August 17, 2011, Ganias moved for a new trial based on alleged
juror misconduct. On August 30, 2011, the district court (Burns, J.) held an
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evidentiary hearing and took testimony from Juror X. The district court denied
the motion (as well as a request for the further taking of evidence) in a decision
filed on October 5, 2011. See United States v. Ganias, No. 3:08 Cr. 224, 2011 WL
4738684 (D. Conn. Oct. 5, 2011).
At the post-trial evidentiary hearing, Juror X explained that he
posted the comment on his Facebook page about "hang[ing] someone" as "a joke,
all friend stuff," and that he was "[j]ust joking, joking around." At first he could
not recall whether he had any conversations with the other juror, with whom he
became Facebook friends during the trial, outside the court. He later clarified,
however, that he did not have any conversations with the other juror during the
course of the trial, prior to deliberations, about the subject matter of the case. He
also testified that he in fact considered the case fairly and impartially. The
district court accepted Juror X's testimony, found that he was credible, and
concluded that he had participated in the deliberations impartially and in
good faith.
5. Sentencing
On January 5, 2012, the district court (Burns, J.) sentenced Ganias
principally to twenty-four months' imprisonment. This appeal followed. Ganias
was released pending appeal.
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DISCUSSION
Ganias raises two issues on appeal: first, he contends that his Fourth
Amendment rights were violated when the Government seized his personal
computer records and then retained them for more than two-and-a-half years;
and, second, he contends that he was entitled to a new trial because of the jury's
improper use of social media.
As to the Fourth Amendment issue, we review the district court's
findings of fact for clear error, viewing the evidence in the light most favorable to
the Government, and its conclusions of law de novo. United States v. Ramos, 685
F.3d 120, 128 (2d Cir.), cert. denied, 133 S. Ct. 567 (2012). As to the issue of the
district court's denial of Ganias's motion for a new trial for alleged juror
misconduct, we review for abuse of discretion. United States v. Farhane, 634 F.3d
127, 168 (2d Cir.), cert. denied, 132 S. Ct. 833 (2011).
Although we vacate Ganias's conviction on the Fourth Amendment
grounds, we address his juror misconduct claim because the increasing
popularity of social media warrants consideration of this question. We address
the juror misconduct question first, as it presents less difficult legal issues, and
we then turn to the Fourth Amendment question.
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A. Juror's Improper Use of Social Media
1. Applicable Law
Defendants have the right to a trial "by an impartial jury." U.S.
Const. amend. VI. That right is not violated, however, merely because a juror
places himself in a "potentially compromising situation." United States v. Aiello,
771 F.2d 621, 629 (2d Cir. 1985), abrogated on other grounds by Rutledge v. United
States, 517 U.S. 292 (1996); see also Smith v. Phillips, 455 U.S. 209, 217 (1982) ("[I]t is
virtually impossible to shield jurors from every contact or influence that might
theoretically affect their vote."). A new trial will be granted only if "the juror's
ability to perform her duty impartially has been adversely affected," Aiello, 771
F.2d at 629, and the defendant has been "substantially prejudiced" as a result,
United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011). Although courts are
understandably reluctant to invade the sanctity of the jury's deliberations, the
trial judge should inquire into a juror's partiality where there are reasonable
grounds to believe the defendant may have been prejudiced. United States v.
Schwarz, 283 F.3d 76, 97 (2d Cir. 2002); United States v. Sun Myung Moon, 718 F.2d
1210, 1234 (2d Cir. 1983). That inquiry should end, however, as soon as it
becomes apparent that those reasonable grounds no longer exist. See Sun Myung
Moon, 718 F.2d at 1234.
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B. Application
A juror who "friends" his fellow jurors on Facebook, or who posts
comments about the trial on Facebook, may, in certain circumstances, threaten a
defendant's Sixth Amendment right to an impartial jury.4 Those circumstances,
however, are not present here. The district court inquired into the matter and
credited Juror X's testimony that he deliberated impartially and in good faith.
The district judge's credibility determination was not clearly erroneous, and thus
she did not abuse her discretion in denying the motion for a new trial.
This case demonstrates, however, that vigilance on the part of trial
judges is warranted to address the risks associated with jurors' use of social
media. The Third Circuit has endorsed the use of jury instructions like those
proposed by the Judicial Conference Committee on Court Administration and
Case Management. See Fumo, 655 F.3d at 304-05. We do so as well.
4
See, e.g., Fumo, 655 F.3d at 331 (Nygaard, J., concurring) ("The availability
of the Internet and the abiding presence of social networking now dwarf the previously
held concern that a juror may be exposed to a newspaper article or television
program."); United States v. Juror Number One, 866 F. Supp. 2d 442, 451 (E.D. Pa. 2011)
("[T]he extensive use of social networking sites, such as Twitter and Facebook, have
exponentially increased the risk of prejudicial communication amongst jurors and
opportunities to exercise persuasion and influence upon jurors."). See generally Amy. J.
St. Eve & Michael A. Zuckerman, Ensuring an Impartial Jury in the Age of Social Media, 11
Duke L. & Tech. Rev. 1 (2012).
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The Committee proposes that, before trial, the district judge give an
instruction that includes the following:
I know that many of you use cell phones,
Blackberries, the internet and other tools of
technology. You also must not talk to anyone
about this case or use these tools to communicate
electronically with anyone about the case. This
includes your family and friends. You may not
communicate with anyone about the case on your
cell phone, through e-mail, Blackberry, iPhone,
text messaging, or on Twitter, through any blog
or website, through any internet chat room, or by
way of any other social networking websites,
including Facebook, My Space, LinkedIn, and
YouTube.5
The Committee also recommends giving a similar instruction at the close of
the case:
During your deliberations, you must not
communicate with or provide any information to
anyone by any means about this case. You may
not use any electronic device or media, such as a
telephone, cell phone, smart phone, iPhone,
Blackberry or computer; the internet, or any
internet service, or any text or instant messaging
service; or any internet chat room, blog, or
website, such as Facebook, My Space, LinkedIn,
5
Judicial Conference Comm. on Court Admin. & Case Mgmt., Proposed
Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or
Communicate about a Case (December 2009), available at www.uscourts.gov/uscourts/
News/2010/docs/DIR10-018-Attachment.pdf.
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YouTube or Twitter, to communicate to anyone
any information about this case or to conduct any
research about this case until I accept your
verdict.6
Here, while the district court gave an appropriate instruction at the
start of the jury's deliberations, it does not appear that it did so earlier. As
demonstrated by this case, instructions at the beginning of deliberations may not
be enough. We think it would be wise for trial judges to give the Committee's
proposed instructions both at the start of trial and as deliberations begin, and to
issue similar reminders throughout the trial before dismissing the jury each day.
While situations like the one in this case will not always require a new trial, it is
the better practice for trial judges to be proactive in warning jurors about the
risks attending their use of social media.
B. The Seizure and Retention of Ganias's Computer Records
1. Applicable Law
The Fourth Amendment protects the rights of individuals "to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures." U.S. Const. amend. IV; see, e.g., United States v. Ramirez,
523 U.S. 65, 71 (1998). A search occurs when the Government acquires
6
Id.
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information by either "physically intruding on persons, houses, papers, or
effects," or otherwise invading an area in which the individual has a reasonable
expectation of privacy. See Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (internal
quotation mark omitted); see also Katz v. United States, 389 U.S. 347, 360-61 (1967)
(Harlan, J., concurring). A seizure occurs when the Government interferes in
some meaningful way with the individual's possession of property. United States
v. Jones, 132 S. Ct. 945, 951 n.5 (2012). Subject to limited exceptions,7 a search or
seizure conducted without a warrant is presumptively unreasonable. See Kyllo v.
United States, 533 U.S. 27, 31 (2001).
We must construe the Fourth Amendment "in [] light of what was
deemed an unreasonable search and seizure when it was adopted, and in a
manner which will conserve public interests as well as the interests and rights of
individual citizens." Kyllo, 533 U.S. at 40. Applying 18th Century notions about
searches and seizures to modern technology, however, is easier said than done,
as we are asked to measure Government actions taken in the "computer age"
against Fourth Amendment frameworks crafted long before this technology
7
In this case, the Government has conceded that it needed a warrant to search the
non-responsive computer files in its possession and has not argued that any exceptions apply.
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existed.8 As we do so, we must keep in mind that "the ultimate touchstone of the
Fourth Amendment is reasonableness." Missouri v. McNeely, 133 S. Ct. 1552, 1569
(2013) (Roberts, C.J., concurring in part and dissenting in part) (internal quotation
marks omitted). Because the degree of privacy secured to citizens by the Fourth
Amendment has been impacted by the advance of technology, the challenge is to
adapt traditional Fourth Amendment concepts to the Government's modern,
more sophisticated investigative tools.
"The chief evil that prompted the framing and adoption of the
Fourth Amendment was the 'indiscriminate searches and seizures' conducted by
the British '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 (1980))
(internal quotation marks omitted). General warrants were ones "not grounded
upon a sworn oath of a specific infraction by a particular individual, and thus not
8
See generally United States v. Jones, 132 S. Ct. 945 (2012) (considering whether
placing GPS tracking unit on vehicle constitutes search); Kyllo, 533 U.S. at 27 (determining
whether use of thermal imaging constitutes search); United States v. Aguiar, 737 F.3d 251 (2d
Cir. 2013) (determining whether warrantless placement of GPS tracking unit on vehicle fell
within good-faith exception to exclusionary rule); United States v. Galpin, 720 F.3d 436 (2d Cir.
2013) (analyzing whether warrant to search computer satisfies particularity requirement); Orin
S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005); James Saylor, Note,
Computers as Castles: Preventing the Plain View Doctrine from Becoming a Vehicle for Overbroad
Digital Searches, 79 Fordham L. Rev. 2809 (2011); Marc Palumbo, Note, How Safe Is Your Data?:
Conceptualizing Hard Drives Under the Fourth Amendment, 36 Fordham Urb. L.J. 977 (2009).
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limited in scope and application." Maryland v. King, 133 S. Ct. 1958, 1980 (2013).
The British Crown had long used these questionable instruments to enter a
political opponent's home and seize all his books and papers, hoping to find
among them evidence of criminal activity. See Stanford v. Texas, 379 U.S. 476, 482-
83 (1965). The Framers abhorred this practice, believing that "papers are often
the dearest property a man can have" and that permitting the Government to
"sweep away all papers whatsoever," without any legal justification, "would
destroy all the comforts of society." Entick v. Carrington, 95 Eng. Rep. 807, 817-18
(C.P. 1765).9
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. The latter requirement, in particular, "makes
general searches . . . impossible" because it "prevents the seizure of one thing
9
The Supreme Court has explained that Entick was "undoubtedly familiar to
every American statesman at the time the Constitution was adopted, and considered to be the
true and ultimate expression of constitutional law with regard to search and seizure." Jones,
132 S. Ct. at 949 (internal quotation marks omitted).
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under a warrant describing another." Id. at 446 (quoting Marron v. United States,
275 U.S. 192, 196 (1927)) (internal quotation marks omitted). 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 (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. 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.
These Fourth Amendment protections apply to modern computer
files. Like 18th Century "papers," computer files may contain intimate details
regarding an individual's thoughts, beliefs, and lifestyle, and they should be
similarly guarded against unwarranted Government intrusion. If anything, even
greater protection is warranted. See, e.g., Galpin, 720 F.3d at 446 ("[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
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quantity of private information it may contain."); United States v. Otero, 563 F.3d
1127, 1132 (10th Cir. 2009) ("The modern development of the personal computer
and its ability to store and intermingle a huge array of one's personal papers in a
single place increases law enforcement's ability to conduct a wide-ranging search
into a person's private affairs . . . ."); Orin S. Kerr, Searches and Seizures in a Digital
World, 119 Harv. L. Rev. 531, 569 (2005) (explaining that computers have become
the equivalent of "postal services, playgrounds, jukeboxes, dating services, movie
theaters, daily planners, shopping malls, personal secretaries, virtual diaries,
and more").
Not surprisingly, the ability of computers to store massive volumes
of information presents logistical problems in the execution of search warrants. It
is "comparatively" commonplace for files on a computer hard drive to be "so
intermingled that they cannot feasibly be sorted on site." Tamura, 694 F.2d at 595.
As evidenced by this case, forensic analysis of electronic data may take months to
complete. It would be impractical for agents to occupy an individual's home or
office, or seize an individual's computer, for such long 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
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were the actual hard drive but without interfering with the individual's use of his
home, computer, or files.
In light of the significant burdens on-site review would place on
both the individual and the Government, the creation of mirror images for off-
site review is constitutionally permissible in most instances, even if wholesale
removal of tangible papers would not be. Indeed, the 2009 amendments to the
Federal Rules of Criminal Procedure, which added Rule 41(e)(2)(B), clearly
contemplated off-site review of computer hard drives in certain circumstances.10
Although Rule 41(e)(2)(B) was not in effect in 2003, when the warrant was
executed with respect to Ganias's computers, case law both before and after the
rule's adoption has recognized that off-site review of seized electronic files may
10
Rule 41(e)(2)(B) provides:
Warrant Seeking Electronically Stored Information.
A warrant under Rule 41(e)(2)(A) may authorize the
seizure of electronic storage media or the seizure or
copying of electronically stored information. Unless
otherwise specified, the warrant authorizes a later
review of the media or information consistent with
the warrant. The time for executing the warrant in
Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or
on-site copying of the media or information, and not
to any later off-site copying or review.
Fed. R. Crim. P. 41(e)(2)(B).
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be necessary and reasonable. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046
(9th Cir. 2013); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012); United
States v. Hill, 459 F.3d 966, 976-77 (9th Cir. 2006); United States v. Upham, 168 F.3d
532, 535 (1st Cir. 1999).
The off-site review of these mirror images, however, is still subject to
the rule of reasonableness. See, e.g., Ramirez, 523 U.S. at 71 ("The general
touchstone of reasonableness which governs Fourth Amendment analysis
governs the method of execution of the warrant." (citation omitted)). The
advisory committee's notes to the 2009 amendment of the Federal Rules of
Criminal Procedure shed some light on what is "reasonable" in this context.
Specifically, the committee rejected "a presumptive national or uniform time
period within which any subsequent off-site copying or review of the media or
electronically stored information would take place." Fed. R. Crim. P. 41(e)(2)(B)
advisory committee's notes to the 2009 Amendments. The committee noted that
several variables -- storage capacity of media, difficulties created by encryption
or electronic booby traps, and computer-lab workload -- influence the duration of
a forensic analysis and counsel against a "one size fits all" time period. Id. In
combination, these factors might justify an off-site review lasting for a significant
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period of time. They do not, however, provide an "independent basis" for
retaining any electronic data "other than [those] specified in the warrant." United
States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1171 (9th Cir. 2010)
(en banc).
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 (2009). Suppression is required "only when [agents]
(1) . . . 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. Shi Yan Liu, 239 F.3d
138, 140 (2d Cir. 2000) (internal quotation marks and citations omitted).
The Government effects a "widespread seizure of items" beyond the
scope of the warrant when the Government' s search "resemble[s] a general
search." Id. at 140-41. Government agents act in good faith when they perform
"searches conducted in objectively reasonable reliance on binding appellate
-25-
precedent." Davis v. United States, 131 S. Ct. 2419, 2423-24 (2011). When
Government agents act on "good-faith reliance [o]n the law at the time of the
search," the exclusionary rule will not apply. 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) (internal quotation marks omitted).
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 for those urging . . . application" of
the rule. Herring, 555 U.S. at 141; see Pennsylvania Bd. of Prob. & Parole v. Scott, 524
U.S. 357, 364-65 (1998) (citing United States v. Payner, 447 U.S. 727, 734 (1980)).
"The principal cost of applying the [exclusionary] rule is, of course, letting guilty
and possibly dangerous defendants go free -- something that 'offends basic
concepts of the criminal justice system.'" Herring, 555 U.S. at 141 (quoting United
States v. Leon, 468 U.S. 897, 908 (1984)).
2. Analysis
This case presents a host of challenging issues, but we need not
address them all. The parties agree that the personal financial records at issue in
-26-
this appeal were not covered by the 2003 warrant, and that they had been
segregated from the responsive files by December 2004, before the Government
began to suspect that Ganias was personally involved in any criminal activity.
Furthermore, on appeal, Ganias does not directly challenge the Government's
practice of making mirror images of computer hard drives when searching for
electronic data, but rather challenges the reasonableness of its off-site review.
Accordingly, we need not address whether: (1) the description of the computer
files to be seized in the 2003 warrant was stated with sufficient particularity, see,
e.g., Galpin, 720 F.3d at 449-50; (2) the 2003 warrant authorized the Government to
make a mirror image of the entire hard drive so it could search for relevant files
off-site; or (3) the resulting off-site sorting process was unreasonably long.
Instead, we consider a more limited question: whether the Fourth
Amendment permits officials executing a warrant for the seizure of particular
data on a computer to seize and indefinitely retain every file on that computer for
use in future criminal investigations. We hold that it does not.
If the 2003 warrant authorized the Government to retain all the data
on Ganias's computers on the off-chance the information would become relevant
to a subsequent criminal investigation, it would be the equivalent of a general
-27-
warrant. The Government's retention of copies of Ganias's personal computer
records for two-and-a-half years deprived him of exclusive control over those
files for an unreasonable amount of time. This combination of circumstances
enabled the Government to possess indefinitely personal records of Ganias that
were beyond the scope of the warrant while it looked for other evidence to give it
probable cause to search the files. This was a meaningful interference with
Ganias's possessory rights in those files and constituted a seizure within the
meaning of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 708
(1983) (detaining a traveler's luggage while awaiting the arrival of a drug-sniffing
dog constituted a seizure); see also Soldal v. Cook Cnty., 506 U.S. 56, 62-64, 68 (1992)
(explaining that a seizure occurs when one's property rights are violated, even if
the property is never searched and the owner's privacy was never violated);
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) ("The
power to exclude has traditionally been considered one of the most treasured
strands in an owner's bundle of property rights.").
We conclude that the unauthorized seizure and retention of these
documents was unreasonable. The Government had no warrant authorizing the
seizure of Ganias's personal records in 2003. By December 2004, these documents
-28-
had been separated from those relevant to the investigation of American Boiler
and IPM. Nevertheless, the Government continued to retain them for another
year-and-a-half until it finally developed probable cause to search and seize them
in 2006. Without some independent basis for its retention of those documents in
the interim, the Government clearly violated Ganias's Fourth Amendment rights
by retaining the files for a prolonged period of time and then using them in a
future criminal investigation.
The Government offers several arguments to justify its actions, but
none provides any legal authorization for its continued and prolonged
possession of the non-responsive files. First, it argues that it must be allowed to
make the mirror image copies as a matter of practical necessity and, according to
the Government's investigators, those mirror images were "the government's
property." As explained above, practical considerations may well justify a
reasonable accommodation in the manner of executing a search warrant, such as
making mirror images of hard drives and permitting off-site review, but these
considerations do not justify the indefinite retention of non-responsive
documents. See Comprehensive Drug Testing, Inc., 621 F.3d at 1171. Without a
warrant authorizing seizure of Ganias's personal financial records, the copies of
-29-
those documents could not become ipso facto "the government's property"
without running afoul of the Fourth Amendment.
Second, the Government asserts that by obtaining the 2006 search
warrant, it cured any defect in its search of the wrongfully retained files. But this
argument "reduces the Fourth Amendment to a form of words." Silverthorne
Lumber Co. v. United States, 251 U.S. 385, 392 (1920). In Silverthorne, the
Government, "without a shadow of authority[,] went to the office of [the
defendants'] company and made a clean sweep of all the books, papers and
documents found there." Id. at 390. The originals were eventually returned
because they were unlawfully seized, but the prosecutor had made
"[p]hotographs and copies of material papers" and used these to indict the
defendants and obtain a subpoena for the original documents. Id. at 391. Justice
Holmes succinctly summarized the Government's argument supporting the
constitutionality of its actions as follows:
[A]lthough of course its seizure was an outrage
which the Government now regrets, it may study
the papers before it returns them, copy them, and
then may use the knowledge that it has gained to
call upon the owners in a more regular form to
produce them; that the protection of the
Constitution covers the physical possession but
-30-
not any advantages that the Government can gain
over the object of its pursuit by doing the
forbidden act.
Id. Unsurprisingly, the Supreme Court rejected that argument: "The essence of a
provision forbidding the acquisition of evidence in a certain way is that not
merely evidence so acquired shall not be used before the Court but that it shall
not be used at all" unless some exception applies.11 Id. at 392. The same rationale
applies here. If the Government could seize and retain non-responsive electronic
records indefinitely, so it could search them whenever it later developed
probable cause, every warrant to search for particular electronic data would
become, in essence, a general warrant.
Third, the Government argues that it must be permitted to search the
11
The Supreme Court has abrogated Silverthorne's broad proposition that
wrongfully acquired evidence may "not be used at all." See United States v. Havens, 446
U.S. 620, 624-25 (1980) (noting that this evidence may be used for purposes of
impeachment); see also Murray v. United States, 487 U.S. 533, 537 (1988) (explaining that
the "independent source" doctrine allows the admission of "evidence initially discovered
during, or as a consequence of, an unlawful search, but later obtained independently
from activities untainted by the initial illegality"); Nix v. Williams, 467 U.S. 431, 444
(1984) (explaining that "inevitable discovery" doctrine permits the admission of
unlawfully obtained evidence if "th[at] information ultimately or inevitably would have
been discovered by lawful means"). The Government does not rely on any of these
exceptions here. Indeed, it concedes that if it "had not preserved that data from the
November 2003 seizure, it would have been lost forever." Appellee's Br. at 33. We do
not hold that the Government has waived its right to use the evidence in question for
impeachment purposes.
-31-
mirror images in its possession because the evidence no longer existed on
Ganias's computers. But the ends, however, do not justify the means. The loss of
the personal records is irrelevant in this case because the Government concedes
that it never considered performing a new search of Ganias's computers and did
not know that the files no longer existed when it searched the mirror images in
its possession. And even if it were relevant, the Fourth Amendment clearly
embodies a judgment that some evidence of criminal activity may be lost for the
sake of protecting property and privacy rights. See, e.g., United States v. Calandra,
414 U.S. 338, 361 (1974) ("The judges who developed the exclusionary rule were
well aware that it embodied a judgment that it is better for some guilty persons to
go free than for the [Government] to behave in forbidden fashion.").
Fourth, the Government contends that returning or destroying the
non-responsive files is "entirely impractical" because doing so would
compromise the remaining data that was responsive to the warrant, making it
impossible to authenticate or use it in a criminal prosecution. Appellee Br. at 34.
We are not convinced that there is no other way to preserve the evidentiary chain
of custody. But even if we assumed it were necessary to maintain a complete
copy of the hard drive solely to authenticate evidence responsive to the original
-32-
warrant, that does not provide a basis for using the mirror image for any
other purpose.
Finally, the Government argues that Ganias's failure to bring a
motion for the return of property, pursuant to Federal Rule of Criminal
Procedure 41(g), precludes him from seeking suppression now. Although the
district court accepted this argument, we find no authority for concluding that a
Rule 41(g) motion is a prerequisite to a motion to suppress. See Fed. R. Crim. P.
41(g) ( "A person aggrieved . . . may move for the property's return." (emphasis
added)); Fed. R. Crim. P. 41(h) ("A defendant may move to suppress
evidence . . . ." (emphasis added)). Imposing such a prerequisite makes little
sense in this context, where Ganias still had the original computer files and did
not need the Government's copies to be returned to him. Moreover, we fail to see
what purpose a Rule 41(g) motion would have served, given the Government's
position that non-responsive files in its possession could not feasibly have been
returned or purged anyway.
Because the Government has demonstrated no legal basis for
retaining the non-responsive documents, its retention and subsequent search of
those documents were unconstitutional. The Fourth Amendment was intended
-33-
to prevent the Government from entering individuals' homes and
indiscriminately seizing all their papers in the hopes of discovering evidence
about previously unknown crimes. See Entick, 95 Eng. Rep. at 817-18; see also
Jones, 132 S. Ct. at 949. Yet this is exactly what the Government claims it may do
when it executes a warrant calling for the seizure of particular electronic data
relevant to a different crime. Perhaps the "wholesale removal" of intermingled
computer records is permissible where off-site sorting is necessary and
reasonable, Tamura, 694 F.2d at 595-97, but this accommodation does not
somehow authorize the Government to retain all non-responsive documents
indefinitely, for possible use in future criminal investigations. See Comprehensive
Drug Testing, 621 F.3d at 1171.
We turn now to the application of the exclusionary rule. As
discussed above, suppression is required when (1) there is a widespread seizure
of items not covered by the warrant and (2) agents do not act in good faith.
United States v. Shi Yan Liu, 239 F.3d 138, 141 (2d Cir. 2000). There must also be a
weighing of (3) the benefits of deterrence against (4) the costs of suppression.
Herring v. United States, 555 U.S. 135, 141 (2009).
First, as we set forth above, the Government effected a widespread
seizure of files beyond the scope of the warrant -- conduct that resembled an
-34-
impermissible general search. Shi Yan Liu, 239 F.3d at 141. For almost two-and-
a-half years, the Government retained records that were beyond the scope of the
2003 warrant, in violation of Ganias's Fourth Amendment rights.
Second, the agents here did not act in good faith. Government
agents act in good faith when they conduct searches in objectively reasonable
reliance on binding appellate precedent. Davis v. United States, 131 S. Ct. 2419,
2423-24 (2011). It is the Government's burden -- not Ganias's -- to demonstrate
the objective reasonableness of the officers' good faith reliance. United States v.
Voustianiouk, 685 F.3d 206, 215 (2d Cir. 2012). We are not persuaded that the
agents in this case reasonably concluded that the 2003 warrant authorized their
search of Ganias's personal records and their retention for more than two years.
The agents acknowledged, at least initially, that the Government was obliged to
"purge[]" the non-responsive data after they completed their search for relevant
files. The record also makes clear that Government investigators "viewed the
data as the government's property" and intentionally retained Ganias's records
for future use. This clearly was not reasonable, and the agents could not have
had a good-faith basis to believe the law permitted them to keep the non-
responsive files indefinitely.
-35-
Third, the benefits of deterrence in this case are great. With the
Government's use of forensic mirror images becoming increasingly common,
deterring its unconstitutional handling of non-responsive data has grown in
importance. The substantial deterrence value in this case is clear when compared
to Davis, 131 S. Ct. at 2419. In Davis, there was no deterrence value because the
police officers conducted their search in compliance with appellate precedent at
the time. While Davis's appeal was pending in the Eleventh Circuit, the Supreme
Court overruled that precedent. There was no cause to deter unlawful
Government conduct because the conduct was lawful when it occurred. That is
not the situation here. In this case, the Government's handling of Ganias's
personal records violated precedent at the time of the search, and relevant Fourth
Amendment law has not fundamentally changed since.
Finally, the costs of suppression are minimal here. This is not a case
where a dangerous defendant is being set free. See Herring v. United States, 555
U.S. 135, 144 (2009) ("The principal cost of applying the [exclusionary] rule is, of
course, letting [a] guilty and possibly dangerous defendant[] go free."). Even
assuming Ganias committed tax evasion -- a serious matter -- this case does not
involve drugs, guns, or contraband. Nor is this a case where police officers
-36-
happened upon guns or drugs or other evidence they otherwise could not have
found. Rather, early on, the evidence here was readily obtainable by subpoena or
search warrant. Moreover, when guns or drugs are suppressed, that evidence is
usually irreplaceable. The records here, however, conceivably are available
elsewhere as hard copies or can be reconstructed from other records. As made
clear by the Government's behavior, the costs of suppression that the
Government has asserted are outweighed by the benefits of deterring
future misconduct.
Accordingly, we reverse the denial of the motion to suppress and
vacate the judgment of conviction.
CONCLUSION
We conclude that the Government violated Ganias's Fourth
Amendment rights by seizing and indefinitely retaining non-responsive
computer records, and then searching them when it later developed probable
cause. Accordingly, Ganias's personal records, seized in the execution of the
November 2003 warrant and retained for two-and-a-half years, should have been
suppressed. For the reasons stated above, we REVERSE the district court's denial
of the motion to suppress, VACATE the judgment of conviction, and REMAND
for further proceedings not inconsistent with this opinion.
-37-
PETER W. HALL, Circuit Judge, concurring in part and dissenting in part:
While I concur with my two colleagues that holding onto non‐
responsive documents for an extended period of time without some independent
basis for retention represents an unreasonable seizure for purposes of the Fourth
Amendment, I respectfully dissent from that portion of the opinion which holds
that in this case the evidence should be suppressed.
The exclusionary rule is a ʺdeterrent sanctionʺ created by the
Supreme Court to ʺbar[ ] the prosecution from introducing evidence obtained by
way of a Fourth Amendment violation.ʺ  Davis v. United States, 564 U.S. 1‐‐‐, 131
S. Ct. 2419, 2423 (2011).  The Supreme Court has cautioned, however, that
ʺexclusion [should be] ʹour last resort, not our first impulse.ʹʺ  Herring v. United
States, 555 U.S. 135, 140 (2009) (quoting Hudson v. Michigan, 547 U.S. 586, 591
(2006)).  This is so because the rule is ʺʹnot a personal constitutional right,ʹ nor is
it designed to ʹredress the injuryʹ occasioned by an unconstitutional search[,] . . .
[its] sole purpose . . . is to deter future Fourth Amendment violations.ʺ  Davis, 131
S. Ct. at 2426 (citations omitted).  The rule specifically deters ʺdeliberate, reckless,
or grossly negligent conduct, or in some circumstances recurring or systemic
negligence.ʺ  Herring, 555 U.S. at 144.  ʺTo trigger the exclusionary rule, police
‐1‐
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.ʺ  Id.  In general, ʺsearches conducted in objectively reasonable
reliance on binding appellate precedent are not subject to the exclusionary rule
. . . . [as] the harsh sanction of exclusion ʹshould not be applied to deter
objectively reasonable law enforcement activity.ʹʺ  Davis, 131 S. Ct. at 2423‐24,
2429 (citation omitted).
In this case, I cannot agree with the majorityʹs determination that the
Government acted in bad faith.  The documents were seized pursuant to a
warrant and the non‐responsive documents were culled and segregated.  While
testimony reveals that the Government mistakenly considered the mirror images
it created of the non‐responsive documents as its own property, there was little
caselaw either at the time of the search or in the following years to indicate that
the Government could not hold onto the non‐responsive material in the way it
did.  Where caselaw existed, the Government complied with the guidelines for
the seizure and offsite search of large amounts of documents.  See United States v.
Tamura, 694 F.2d 591, 595‐96 (9th Cir. 1982) (noting that ʺ[i]n the comparatively
rare instances where documents are so intermingled that they cannot feasibly be
‐2‐
sorted on site,ʺ the Government may seize items outside the scope of the warrant
under certain conditions).  What is more, the Government scrupulously avoided
reviewing files that it was not entitled to review before obtaining the 2006 search
warrant.
With respect to the balancing between deterrence and the cost of
suppression, because the Governmentʹs actions did not violate established
precedent at the time of the search, I do not perceive a need for deterrence.  ʺ[A]ll
that exclusion would deter in this case is conscientious police work.ʺ  Davis, 131
S. Ct. at 2429.  Additionally, as Ganias himself stated, the evidence to be
suppressed in this case would not have existed but for the Governmentʹs
retention of the non‐responsive materials.  The evidence to be suppressed is thus,
contrary to the majorityʹs conclusion, of the same irreplaceable nature as guns or
drugs.  Moreover, in light of the serious and nefarious effects of money fraud
crimes on society, see, e.g., United States v. Madoff, No. 09 Crim. 213(DC), 2009 WL
3347945 (S.D.N.Y. Oct. 13, 2009), I am loathe to conclude that guns, drugs and/or
contraband are the only indicia of a dangerous defendant.  Accordingly, while I
agree that the Government violated the defendantʹs Fourth Amendment rights to
be free from an unreasonable seizure because it held for a prolonged period of
‐3‐
time mirror images of computer‐generated records that were not responsive to
the 2003 search warrant without returning them (or destroying them), I see no
reason to suppress the evidence derived therefrom under the circumstances
presented.
‐4‐