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Tuesday, October 1st, 2019

Circuit Affirms Conviction and Sentence for Felon in Possession of a Firearm

In United States v. Wiggins, No. 18-1337-cr, __ F. App’x __ (2d Cir. Sept. 30, 2019), the Court summarily affirmed the defendant’s conviction and 78-month prison sentence for possessing a firearm as a convicted felon. First, the Court rejected the defendant’s argument that suppression was required because the district court improperly authorized a second search warrant of his cellphone despite the absence of probable cause. Even if probable cause was lacking, the Court ruled, the police officers executed the warrant in good faith, such that suppression was not required.

Second, the Court upheld evidentiary rulings: (1) admitting certain text messages; and (2) excluding sweatpants that the defendant allegedly wore at the time of his arrest, police recordings of his arrest, and a summary of those recordings.

The text messages tended to show that the defendant had access to a firearm as recently as a “few weeks” before his arrest …

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Categories: crime of violence, evidence, good faith, search warrant

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Monday, September 11th, 2017

Nuanced Second Circuit Opinion on Dissipated Probable Cause & McLaughlin Violations

The Second Circuit issued two criminal opinions today, both of which we will cover this week. In one, United States v. Pabon, the Circuit rejected a set of Fourth Amendment challenges where police obtained a CT scan which revealed that the defendant was body-packing narcotics. The opinion, available here, is as notable for what it does not hold as for what it does.

In Pabon, police obtained a search warrant authorizing an x-ray of the defendant’s lower abdomen to determine whether he was body-packing narcotics. Based on the x-ray, an emergency room physician reported that body-packing was “unlikely.” A detective nevertheless obtained a search warrant for a CT scan based on his testimony that the x-ray results were consistent with those he had observed in other body-packing cases. The CT scan suggested body-packing, and the defendant was given laxatives that led him to pass eight packages of …

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Categories: car stop, Exclusionary Rule, Fourth Amendment, probable cause, search warrant

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Thursday, June 15th, 2017

Judge Nathan Grants Suppression in Fraud Case

Southern District Judge Alison Nathan suppressed evidence obtained as a result of “essentially limitless” warrants that were “insufficiently particularized.”  The 92-page opinion in United States v. Wey,  15-cr-611 (AJN), can be accessed here.  Agents executing the searches collected, among other things, personal documents and materials from Wey’s home and office.  The Court found that the “catch-all” gathering of all of this material had no “linkage to the suspected criminal activity, or indeed any meaningful content-based parameter or other limiting principle” and that the Agents’ actions ran afoul of “well-established constitutional principles that provide a bulwark against the execution of general warrants.”  Recognizing that it was and “extraordinary remedy,” the Court ordered suppression of all evidence gathered from both search locations.…

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Categories: Fourth Amendment, search warrant

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Friday, July 8th, 2016

Defendant Not “in Custody” When Questioned During Execution of Search Warrant at Her Home

In United States v. Danielle Faux, Docket No. 15-1282-cr, the Circuit (Jacobs, Hall, Restani), in an opinion by Judge Jacobs, reversed on the Government’s interlocutory appeal the district court’s grant of defendant Faux’s suppression motion, based on the claim that she was “in custody” when law enforcement agents questioned her (without providing Miranda warnings) while executing a search warrant of her home. The ultimate question in such cases — whether, taking into all the circumstances, “a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest,” Op. at 12 — is necessarily fact-specific. And while the Court acknowledges that this is a very close case – “[t]he Government stepped right up to the limits of constitutionally permissible conduct and . . . just managed to toe the line” – it ultimately concludes that “the circumstances did not rise to …

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Categories: interlocutory, Miranda, search warrant

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Friday, May 27th, 2016

More Thoughts on Ganias

Today there was a big decision (both metaphorically and literally – the decision runs 104-pages) from the Second Circuit in United States v. Ganias about search warrants in an age of digital data. In Ganias, the government seized and made identical copies of three hard drives that belonged to an accountant, Stavros Ganias, pursuant to a warrant (the “2003 warrant”) in a fraud investigation. The government continued to hold the files, even after reviewing them for all relevant information contained in the 2003 warrant. In 2006, the government obtained a second warrant (the “2006 warrant”) as part of an IRS tax evasion investigation and they searched the files anew pursuant to that second warrant.

There were two questions presented:

  1. Whether the fourth amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non-responsive files, retained the cloned hard
…
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Categories: Fourth Amendment, good faith, search warrant

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Thursday, August 16th, 2012

Upstairs, Downstairs

United States v. Voustianiouk, No. 10-4420-cr (2d Cir. July 12, 2012) (McLaughlin, Pooler, Parker, CJJ)

In 2009, federal agents armed with a search warrant for the first-floor apartment of an apartment building in the Bronx, instead searched the second-floor apartment. The circuit agreed with the defendant that this search violated the Fourth Amendment’s warrant requirement.  It vacated his conviction and sentence.

Background

This case began as an investigation by I.C.E. agents who learned of an IP address associated with a file-sharing network implicated in child pornography. Ultimately, the IP addressed was traced to Voustianiouk; the internet service provider indicated that his address was “2424 Cambreleng Avenue, Apartment 1,” in the Bronx. An agent, Raab, confirmed that Voustianiouk lived at that address, although he could not confirm which apartment. He eventually obtained a warranted to search “Apt. 1” in that building, which the warrant described as “a ground floor apartment …

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Categories: Exclusionary Rule, search warrant, Uncategorized

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Sunday, July 10th, 2011

Summers-Time Blues

United States v. Bailey, No. 07-3819-cr (2d Cir. July 6, 2011) (Cabranes, Pooler, Raggi, CJJ)

In Michigan v Summers, 452 U.S. 602 (1981), the Supreme Court held that the Fourth Amendment permitted police officers to detain the occupant of a premises during the execution of a search warrant, without need for individualized suspicion of the person detained. Here, the circuit, joining an issue in which the courts are divided, held that Summers also permits detaining the occupants after they have left the premises.

Background

In July of 2005, Suffolk County detectives obtained a search warrant for a basement apartment in Wyandanch, based on an informant’s tip that there was a gun there. When they arrived at the location to execute the warrant, they saw Bailey and an associate exiting the apartment. They drove off and the officers followed; about a mile from the apartment, the officers stopped Bailey’s car.

The …

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Categories: detention, Fourth Amendment, search warrant, Uncategorized

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Sunday, October 31st, 2010

Dread Herring

United States v. Rosa, No. 09-0636-cr (2d Cir. October 27, 2010) (Walker, Livingston, CJJ, Kaplan, DJ)

Back in June, in a case called Julius, after finding a Fourth Amendment violation, the circuit remanded the case so that the district court could perform a cost-benefit analysis in deciding whether to apply the exclusionary rule. See Julius’ Seizure, posted June 19, 2010. According to Julius, such an analysis is now required under the Supreme Court’s decision in Herring v. United States, 129 S. Ct. 695 (2009). Here, the court took Julius one step further, performing its own Herring analysis and concluding that the exclusionary rule should not apply.

Background

Defendant Rosa was suspected by upstate police officers of molesting local children. Before arresting him, the officers obtained a search warrant for his apartment. While the materials supporting the warrant specified the kinds of offenses of which Rosa was suspected and the particular …

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