United States v. Wright, No. 14-1558, 2015 WL 507169 (3d Cir. Feb. 6, 2015)
What Did the Government Gain From the Violation?
A precedential opinion on search and seizure was issued by the Third Circuit on February 6, 2015. In United States v. Wright, 777 F.3d 635 (3d Cir. Feb. 6, 2015), the Third Circuit decided that even facially invalid search warrants require a Leon-type review of the law enforcement officer’s application and execution of the search warrant. The particularized list of “things to be seized” in Wright was in the affidavit of probable cause; however, the affidavit was sealed to protect the ongoing investigation. Thus, during the execution of the warrant, the particularized list of items which would have guided the agents during the search and seizure was not present. In spite of the absence of the list of the items to be seized, the district court determined that the federal agents did not exceed the scope of the sealed list of items to be seized. The Third Circuit affirmed.
Judge Julio M. Fuentes, writing for the panel, engaged in a significant discussion of the difference between gross negligence (which would result in suppression) and mere negligence (which would not result in suppression) as it relates to law enforcement conduct, and Judge Fuentes said that even “if a warrant is facially invalid, an assessment of the officers’ culpability and the value of deterrence may counsel against suppression.” Id. at 639.
A seizure of evidence beyond the scope of the warrant would tend to show culpability of law enforcement (in the violation of the Fourth Amendment); and, therefore, would be “relevant to the value of deterrence.” Id. at 640. The Court found that there is significant value in suppressing evidence where there is government misconduct which results in seizures beyond the scope of two areas of Constitutional limitation – the “probable cause” requirement and the “particularity” requirement.
A key question posed in Wright is, “[W]hat [did] the [g]overnment gain[ ] from the violation[?]” Id. (emphasis added). It is possible to show deliberate recklessness or grossly negligent conduct by the government where the seizure of evidence is beyond the scope of the probable cause or the list of items to be seized. Id. at 638 (citing United States v. Herring, 555 U.S. 135, 144, 129 S. Ct. 695, 702, 172 L. Ed. 2d 496 (2009)). In other words, it is not the subjective motive of the government agent that controls; rather, it is what the government acquires which is, at times, most telling of the culpability of the law enforcement agents.
There is significant judicial interest in engendering respect for the Fourth Amendment, and in deterring government conduct which directly undermines it. The Third Circuit instructed district courts to be mindful of the incentive law enforcement might have to commit the forbidden act. Id. at 640. Gaining evidence that the prosecution would otherwise not be permitted to acquire under the Fourth Amendment may provide a great incentive to law enforcement to shortcut the Constitutional restriction and call it an innocent mistake. Thus, even if law enforcement conduct looks like a mistake, the judiciary may deem it grossly negligent behavior which should be deterred by suppression.
This issue is particularly important where electronically-stored evidence is forensically searched and seized by the government. Computer searches commonly exceed the particularity of the list of “items to be seized” because of the difficulty in limiting the process of conducting a forensic search of electronically-stored evidence. Law enforcement often asserts that the entire computer must be searched because folders may be misnamed or otherwise disguised to conceal criminal evidence for which the prosecution has established probable cause. Government agents may perceive the use of a special master or taint team as a method to stay within the probable cause and particularized list as a cumbersome method to conduct a criminal investigation. Agents generally are incentivized by the fact that the seizure of the whole hard drive can provide free access to areas well beyond that for which the government has probable cause. When called out with seized evidence beyond the limits of probable cause, the government frequently relies on the “plain view” doctrine as a fall-back explanation for a general search. Where the government images the entire hard drive, juxtaposing the seized evidence and the probable cause (or the particular items-to-be-seized list) will reveal whether law enforcement acted beyond the scope of the search warrant, and, therefore, whether searching agents acted illegally. Such comparisons under the Wright analysis may reveal gross negligence and support the suppression of evidence.