Three years ago, following the Supreme Court's unanimous decision in Riley v. California barring warrantless searches of cellphones, this column expressed the “hope that, in the digital age, the courts may breathe a bit more life back into the Fourth Amendment after years of cutting back on its protections.”¹ That cautious statement of optimism also came in the wake of a U.S. Court of Appeals for the Second Circuit panel's reversal of a tax evasion conviction in United States v. Ganias based on the government's violation of the defendant's Fourth Amendment rights by its lengthy, unauthorized retention of his personal files located on a hard drive seized via a search warrant in an earlier investigation. Alas, the need for caution was confirmed when an en banc Second Circuit later reversed the Ganias panel's decision, finding that the agents executing the warrant acted in good faith, and declining to rule on whether or not Stavros Ganias' Fourth Amendment rights were violated in the first place. 824 F.3d 199 (2d Cir. 2016).

A recent high-profile Fourth Amendment victory for the defense, a June 2017 decision from Southern District of New York Judge Alison J. Nathan suppressing the fruits of two search warrants in United States v. Wey, (__F. Supp.3d __, 2017 WL 2574026 (S.D.N.Y. June 14, 2017)), provides another occasion to assess the state of play as prosecutors, defense counsel, and the courts continue to wrestle with applying Fourth Amendment precedents to today's “big data.” In this article, we consider Wey in light of the Second Circuit's final opinion in Ganias, as well as a recent decision by Southern District of New York Judge Kathleen Forrest in In re 650 Fifth Avenue and Related Properties, which declined suppression despite agents' reliance on a search warrant having constitutional infirmities strikingly similar to those in Wey.

These cases demonstrate that the government's tendency to use broadly drafted search warrants to obtain documents in white-collar investigations continues to cause legal and logistical problems.²Wey and Ganias, in particular, illustrate continuing questions regarding what meets the Fourth Amendment test of “reasonableness” for searches of electronic files mirror-imaged at the searched premises and then later reviewed off site by government agents, as permitted by Fed. R. Crim. P. 41(e)(2)(B). For investigators striving to make a case, it is undoubtedly tempting to conduct additional searches of a vast trove of the subject's electronic files that have been sitting for months in the government's evidence locker. But Wey and Ganias show that succumbing to that temptation may draw the investigation into largely uncharted and perilous legal territory. Finally, these decisions also illustrate that whether a flawed search may be saved by a finding that government agents acted in “good faith” is a highly fact specific and unpredictable inquiry.

'United States v. Wey'

A Southern District of New York grand jury indicted financier Benjamin Wey in 2015 on eight counts of securities fraud, wire fraud, conspiracy to commit securities and wire fraud, and money laundering. The indictment was issued almost four years after the government executed search warrants on the offices of Wey's company, New York Global Group (NYGG), and on Wey's private apartment, seizing data from more than 24 computers and cell phones and over 4,500 pages of hard copy documents. Judge Nathan granted Wey's motion to suppress the fruits of the warrants in a detailed decision identifying serious flaws with the warrants themselves, their execution, and the government's actions after the seizure.