CA2: Exclusionary rule applies to civil forfeiture cases and govt’s civil discovery
In a forfeiture action against a NYC office building and several other buildings because one of the corporate owners was a front for the Iranian government, the Second Circuit held that “The Fourth Amendment’s exclusionary rule applies in civil forfeiture cases, and a party’s civil discovery obligations do not automatically render Fourth Amendment rights and remedies inapplicable.” In re 650 Fifth Ave. & Related Properites, United States v. Alavi Foundation, 2016 U.S. App. LEXIS 13225 (2d Cir. July 20, 2016):
… The Fourth Amendment’s exclusionary rule applies in civil forfeiture cases, and a party’s civil discovery obligations do not automatically render Fourth Amendment rights and remedies inapplicable. We likewise identify error in the District Court’s alternative ruling that every item of unlawfully seized evidence would have been inevitably discovered. While discovery obligations might shield unlawfully seized items from suppression under the inevitable discovery doctrine, see United States v. Eng, 971 F.2d 854, 861 (2d Cir. 1992), such a conclusion requires a district court, “for each particular piece of evidence, specifically [to] analyze and explain how, if at all, discovery of that piece of evidence would have been more likely than not inevitable absent the [challenged search],” id. at 862 (internal quotation marks omitted). Because the record fails to demonstrate that particularized review, we remand to allow the District Court to conduct the requisite analysis. On remand, the Government may also pursue its argument—raised before the District Court and on appeal—that the good-faith exception to suppression applies in this case. See United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
III. The Motion to Suppress
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A. The Fourth Amendment Applies to the Seizures at Issue
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. It further provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id. While the Fourth Amendment “contains no provision expressly precluding the use of evidence obtained in violation of its commands,” the Supreme Court has established “an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.” Herring v. United States, 555 U.S. 135, 139, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (internal quotation marks omitted). The exclusionary rule is “‘designed to safeguard Fourth Amendment rights generally through its deterrent effect.'” Id. at 139-40 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974)).
It is well-established that the Fourth Amendment’s exclusionary rule applies in forfeiture cases. See 500 Delaware Street, 113 F.3d at 312 n.3; see also One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965) (holding that the Fourth Amendment’s protection against unreasonable searches and seizures applies in forfeiture proceedings); Austin v. United States, 509 U.S. 602, 608 n.4, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993) (observing that “the [Supreme] Court has held that the Fourth Amendment’s protection against unreasonable searches and seizures applies in forfeiture proceedings”); Krimstock v. Kelly, 306 F.3d 40, 49 (2d Cir. 2002) (explaining that “[t]he Supreme Court has held that the Fourth Amendment protects claimants against unreasonable seizures of their property in the civil forfeiture context”).
The District Court, however, concluded that there was no need to consider the Claimants’ Fourth Amendment challenges to the seized evidence in this case because the Claimants’ pre-existing civil discovery and production requirements “obviate[d] the need for any Fourth Amendment analysis.” In re 650 Fifth Ave. Suppression Decision, 970 F. Supp. 2d at 211. In fact, discovery or production obligations do not displace Fourth Amendment protections. Rather, such obligations may trigger the inevitable discovery doctrine to shield from suppression even evidence seized in violation of the Fourth Amendment. See United States v. Eng, 971 F.2d 854, 861 (2d Cir. 1992). Because we here identify a Fourth Amendment defect in the seizure warrant, we proceed to consider whether the Government demonstrated inevitable discovery. We conclude that the District Court failed to make the requisite findings with sufficient particularity and, therefore, we vacate its suppression ruling and remand for further proceedings consistent with this opinion.
B. The Warrant Was Constitutionally Defective
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On its face, the warrant in this case plainly lacked particularity as to the crimes at issue. Indeed, the Government concedes this point. See Government Br. 81 (acknowledging that “warrant should have listed the alleged offenses, but did not”). Nor did the warrant particularize categories of computerized information for which there was probable cause to seize, or the temporal scope of the materials that could be seized. Instead, the warrant authorized the search and seizure of (1) “[a]ny and all … documents or records concerning or relating to the ownership of, rental of, mortgaging of, or investing in [Assa, 650 Fifth Ave. Co., Alavi, or Bank Melli Iran],” (2) “[a]ny and all documents concerning or relating to financial books and records, bank accounts, disbursements, money transfers or employment records of [Assa, 650 Fifth Ave. Co., Alavi, or Bank Melli Iran] or any of the officers and employees of these entities,” and, most broadly, (3) “[a]ny and all computers; central processing units; external and internal drives; external and internal storage equipment or media; computerized data storage devices; hard disks or floppy disks; CD-ROMs[;] … and related or connected computer or data storage equipment” located on the premises to be searched. App’x 5141.
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While the Ennis affidavit supporting the warrant does reference the potential charges for which evidence was sought, noting that “Bank Melli is subject to the Iranian Transactions Regulations … and Assa Co.’s interest in the Building and its rents is subject to civil forfeiture, as fully set forth in” the initial 2008 complaint against Assa and Bank Melli, that affidavit was neither attached to the warrant nor incorporated by deliberate and unequivocal language. The warrant only referenced the affidavit. See App’x 5140 (“Affidavit(s) having been made before me by Special Agent George Ennis ….”); id. (“I am satisfied … that the grounds for application for issuance of the search warrant exist as stated in the supporting affidavit(s) ….”). Thus, even assuming that the affidavit can be construed to signal that only evidence relating to the alleged forfeitable offenses was to be seized, the failure of deliberate incorporation precludes a reviewing court’s reliance on the affidavit to cure the warrant’s lack of particularity. See Groh, 540 U.S. at 557-58.
C. The Inevitable Discovery Exception to Suppression
This precedent makes clear that Claimants’ civil discovery and protective order obligations were not enough, by themselves, to support a conclusion that the Fourth Amendment was “not implicated” in the suppression challenge presented. In re 650 Fifth Ave. Suppression Decision, 970 F. Supp. 2d at 212-13. Moreover, this precedent precludes a general conclusion that all of the evidence seized pursuant to the challenged warrant was nonetheless admissible in the Government’s forfeiture action because it would have been inevitably discovered in civil discovery or as a result of the protective order. In reaching that conclusion here, the District Court reasoned in two paragraphs of factual findings that “[a]s to Alavi, such historical facts exist and demonstrate inevitable discovery” for all of the evidence seized in the December 2008 search because “[t]he pre-existence of civil litigations which each carried common law preservation obligations, the production obligations under the Federal Rules of Civil Procedure, and the fact that Alavi failed to object to the scope of those obligations and actually produced the disputed documents moot the constitutional question central to this motion.” Id. at 213.
This analysis was insufficient to support a finding that the Government would inevitably have discovered the entire contents of Alavi’s computers, electronic storage devices, servers, and over 200 boxes of documents pursuant to the protective order and civil discovery obligations. Specifically, the District Court failed to make clear that it was “viewing affairs as they existed at the instant before the unlawful search,” and making particularized findings as to “what would have happened had the unlawful search never occurred.” Eng I, 971 F.2d at 861 (emphasis in original); see In re 650 Fifth Ave. Suppression Decision, 970 F. Supp. 2d at 211-13. The former consideration should properly have been informed by (1) the initial civil forfeiture action, filed on December 17, 2008, which sought forfeiture only of Assa’s assets, although it discussed in detail the history of Alavi and 650 Fifth Ave. Co.; (2) the District Court’s December 17, 2008 protective order in that action, which, among other things, (a) required 650 Fifth Ave. Co. to make available for inspection to the United States all of its books and records and (b) prohibited any person or entity with actual knowledge of the protective order from destroying documents relating to the forfeiture complaint’s allegations; (3) the December 17, 2008 grand jury subpoena to Alavi seeking all documents relating, or referring, to Assa, 650 Fifth Ave. Co., and Bank Melli, for the period January 1989 to December 2008; and (4) Jahedi’s observed destruction of documents responsive to that subpoena the following day. With respect to these pre-search events, we make several observations.
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This is not to say that the Government lacked sufficient evidence to commence a forfeiture action against Alavi and 650 Fifth Ave. Co. before the challenged search. Indeed, based on facts alleged in the initial forfeiture complaint and issuance of the December 17, 2008 subpoena, the Government’s investigation may well have been sufficiently advanced prior to the December 19, 2008 search to make both Claimants’ addition to the forfeiture complaint even without the unlawfully seized evidence and, therefore, their disclosure obligations, inevitable. Because the District Court declined to consider this argument below, however, the record does not now permit us to reach such a conclusion. Rather, the District Court may consider this issue on remand. See Eng I, 971 F.2d at 861-62 (explaining that”inevitable discovery analysis logically must begin with the progress of the investigation at the time of the government misconduct,” and that court conducting such analysis must determine what would have happened “in light of what the government knew and was pursuing at the moment before the unlawful search”).
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D. The Good Faith Exception
On appeal, the Government argues, with some force, that, whether or not the inevitable discovery exception applies, no suppression of evidence is warranted in this case because the executing agents relied in good faith on the December 19, 2008 search warrant. See United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); see also United States v. Rosa, 626 F.3d 56, 64 (2d Cir. 2010) (explaining that although unincorporated, unattached supporting documents cannot cure constitutionally defective warrant, “those documents are still relevant to our determination of whether the officers acted in good faith”). Because the District Court did not address the Government’s good-faith argument, we decline to consider it for the first time on appeal. Rather, we leave the Government to pursue it on remand in the District Court.