When law enforcement officials execute warrants for electronic
data, they usually create a mirror image of hard drives and other
electronic storage media. In recent years, it has become more
common for law enforcement to keep every bit and byte they obtain
from doing so. But the Second Circuit's June 17 opinion in
United States v. Ganias should put a stop to this
practice, thanks to the successful advocacy of Day Pitney's
Stanley A. Twardy Jr.,
Daniel E. Wenner and
John W. Cerreta.
In Ganias, federal agents obtained a search warrant to
search the computers of Stavros Ganias, a CPA, for evidence
regarding purported wrongdoing by an accounting client. Instead of
taking Ganias's computers, the agents mirror-imaged three hard
drives, which included large quantities of data outside the
warrant's scope. Twenty-three months later, when the agents
decided to pursue an investigation of Ganias himself, they obtained
a new search warrant and used it to search those mirror images for
evidence of alleged wrongdoing by Ganias. The trial court denied
Ganias's suppression motion, and the evidence found on the
mirror-imaged hard drives was used to convict him. Ganias appealed
the denial of his pretrial suppression motion.
On appeal, Day Pitney argued that this practice effectively turned
lawful search warrants into unlawful general warrants, thereby
contravening the Fourth Amendment. The Second Circuit agreed,
reversing the denial of suppression and vacating Ganias's
conviction. The court held that even in the face of changing
technology, the Fourth Amendment does not permit officials to seize
and indefinitely retain electronic files outside a warrant's
scope. As a result, the government will no longer be allowed to
retain indefinitely mirror-image files seized outside the scope of
a lawful warrant.
For a summary of the opinion, click here. To read about the importance of the
opinion, click here, here, here or here. To read the opinion, click here.
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