Thursday, August 22nd, 2019

Second Circuit Vacates Civil Forfeiture Judgement Based on Suppression Issue and Other Errors

On August 9, 2019, the Second Circuit vacated a high-profile civil forfeiture judgment, in an opinion that may be of interest to criminal practitioners. The litigation involves the government’s efforts to seize 650 Fifth Avenue, a skyscraper in midtown, and other property, based on allegations that the property owners violated federal law through their relationships with the Islamic Republic of Iran.

In In re 650 Fifth Avenue and Related Properties, No. 17-3258(L) (2d Cir. Aug. 9, 2019), 2019 WL 3756033, the Circuit held that, among other errors, the trial court mistakenly denied a motion to suppress evidence obtained pursuant to a defective search warrant. In a prior 2016 appeal in the case, the Circuit ruled that a certain search warrant was constitutionally deficient because, on its face, it lacked particularity as to the alleged crimes.

Thus, the Circuit had already found a Fourth Amendment violation. The only question was the remedy for this violation and whether the government could avoid suppression of evidence. Following remand, the district court declined to exclude evidence, citing the good-faith and inevitable discovery doctrines.

But the Circuit rejected both of the district court’s rulings.

With respect to good faith, the Circuit reaffirmed that the good faith exception will not apply if it was unreasonable for the government to rely on the warrant in the first place. Reliance is unreasonable when, for example, a warrant “fail[s] to particularize the place to be searched or the things to be seized” or is otherwise “so facially deficient … that the executing officers cannot reasonably presume it to be valid.”

This warrant was “facially deficient.” In the words of the Circuit, the warrant did not “even arguably include a reference to the Claimants’ alleged crimes or a temporal scope for the items to be seized. … No reasonable officer could have presumed that this glaringly deficient warrant was valid.”

The Circuit also rejected the claim that reliance on the deficient warrant was justified because certain law enforcement officers knew with greater particularity what they were looking for: “[g]eneral notions of the targeted property and alleged crimes are not a substitute for a warrant demonstrating that a judge authorized the seizure of particular items for particular reasons.”

Next, the Circuit held that the district court made insufficient factual findings to support application of the inevitable-discovery doctrine. The Circuit emphasized the government’s burden to show how it would have discovered “each particular piece of evidence … absent the [unlawful] search,” and to account for any and all contingencies—a burden that was not met under the factual record here.

In addition to these findings, the opinion discusses other evidentiary issues, including the wrongful preclusion of certain witness testimony and rebuttal evidence, and the erroneous admission of witnesses’ invocations of their Fifth Amendment rights.

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