Appeals Court: As Long As The Government Has 'Good Faith,' It Can Root Around In Your Digital Files As Much As It Wants

from the no-time-for-merits,-not-when-there-are-people-needing-to-be-locked-up! dept

A case dealing with a warrant issued in 2003, a subsequent warrant issued in 2006, and a whole lot of judicial work in between finally concludes -- with the Second Circuit Court of Appeals coming down on the side of the government's apparent "right" to seize everything, hold it for an indefinite period of time, and pore through unrelated documents in hopes of finding evidence of additional criminal activity.

The government, in the form of the US Army, first went after Stavros Ganias for billing improprieties and theft of copper wire. Over the next three years, this morphed into an IRS investigation for tax fraud, using the same hard drives the Army seized three years before the IRS showed any interest. The IRS obtained its own warrant and began looking for evidence related to its suspicions.

In 2014, the Appeals Court decided Ganias' Fourth Amendment rights had been violated by the government's multi-agency fishing expedition.

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. [....] The Government had no warrant authorizing the seizure of Ganias's personal records in 2003. By December 2004, these documents 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 DOJ immediately asked for a rehearing, claiming it should be able to dig through unrelated files because the seized hard drives were technically government property. Besides, it explained in its 86-page brief, this sort of fishing around in non-relevant files had once resulted in a child pornography conviction.

The Second Circuit's second take [PDF] doesn't necessarily align with the government's arguments. However, despite the opinion running 60 pages, the court spends very little time discussing the Fourth Amendment implications and a lot of time developing the government's "good faith exception" argument for it.

For whatever reason, the court mostly glosses over the lack of "good faith" in the Army's examination of files unrelated to is investigation and its extended seizure (in the form of mirrored hard drives) of non-relevant files. Instead, it focuses mostly on the IRS's warrant and search of the mirrored drives, finding that this warrant -- issued two-and-a-half years after the first one and predicated on the Army's peek at unrelated files -- was obtained and executed in "good faith." The end result is another win for the government's heart being in the right place and another loss for Fourth Amendment protections.

Ganias argues that the Government retained non-responsive data on mirrored hard drives acquired pursuant to a 2003 search warrant in violation of the Fourth Amendment, and that evidence acquired pursuant to a 2006 search of that data should thus have been suppressed. Because we find that the Government relied in good faith on the 2006 warrant, we need not and do not decide whether the Government violated the Fourth Amendment, and we affirm the judgment of the district court.

Further on in the opinion, the court inadvertently shows its hand -- pointing out that discussing "good faith" exceptions means it's not interested in examining the merits of the defendant's arguments.

Having noted Ganias’s argument, we do not decide its merits. We instead turn to the question of good faith.

The government gets credit for trying. The accused get nothing more than a brief tap on the shoulder as the court squeezes by them and their questions.

Judge Chin's dissent [PDF], for what little good it does for Ganias and future citizens in his position, at least makes some attempt to address the lack of merit in the government's arguments.

[E]nshrined in the Fourth Amendment is the foundational principle that the Government cannot come into oneʹs home looking for some papers and, without suspicion of broader criminal wrongdoing, indiscriminately take all papers instead. In this case, the Government argues that when those papers are inside a computer, the result is different. It argues that when computers are involved, it is free to overseize files for its convenience, including files outside the scope of a warrant, and retain them until it has found a reason for their use. In essence, the Government contends that it is entitled to greater latitude in the computer age. I disagree. If anything, the protections of the Fourth Amendment are even more important in the context of modern technology, for the Government has a far greater ability to intrude into a personʹs private affairs.

Chin is uninterested in allowing the government to shrug and say, "Technology is hard," before obtaining its "good faith" pass from the courts.

The majority opinion, however, makes it clear that as long as the government obtains a warrant, it can dig through non-relevant documents for an indefinite period of time. Because the court decided to pass on examining the merits of Ganias' Fourth Amendment arguments, the government will be able to use its "good faith" shield in the Second Circuit for years to come. It took Ganias several years of courtroom appearances to fight a search that occurred ten years ago. And while this has made its way slowly through the justice system, his life has been on hold. Tracing back to the point where he was first investigated for wrongdoing, that's 13 years of his life -- and all of it for nothing, thanks to the two words no defendant wants to hear: good faith.

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Filed Under: 4th amendment, good faith exception, stavros ganias, warrant