Executing Search Warrants in the Digital Age: 'United States v. Wey'
White-Collar Crime columnists Robert J. Anello and Richard F. Albert look at a recent high-profile Fourth Amendment victory for the defense in 'U.S. v. Wey' in light of the Second Circuit's final opinion in 'U.S. v. Ganias,' as well as a recent decision 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.'
July 31, 2017 at 02:04 PM
12 minute read
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.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllEstablishing the Prevailing Party; Failure To Comply With LLC Law; Takings Claim: This Week in Scott Mollen's Realty Law Digest
GOP's National Gains Prompt NY Gov., AG, to Brace for Legal Battles Over Equal Rights Measure
'A Sea Change': NY Equal Rights Measure May Prompt Flurry of Lawsuits if Approved by Voters
Trump Files $10B Suit Against CBS Over Edits to Kamala Harris Interview
3 minute readTrending Stories
- 1Infant Formula Judge Sanctions Kirkland's Jim Hurst: 'Overtly Crossed the Lines'
- 2Trump's Return to the White House: The Legal Industry Reacts
- 3Election 2024: Nationwide Judicial Races and Ballot Measures to Watch
- 4Climate Disputes, International Arbitration, and State Court Limitations for Global Issues
- 5Judicial Face-Off: Navigating the Ethical and Efficient Use of AI in Legal Practice [CLE Pending]
- 6How Much Does the Frequency of Retirement Withdrawals Matter?
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250