Three years ago, following the Supreme Court’s unanimous decision in Riley v. California barring warrantless searches of cellphones, this column expressed the “hope that, in the digital age, the courts may breathe a bit more life back into the Fourth Amendment after years of cutting back on its protections.”1 That cautious statement of optimism also came in the wake of a U.S. Court of Appeals for the Second Circuit panel’s reversal of a tax evasion conviction in United States v. Ganias based on the government’s violation of the defendant’s Fourth Amendment rights by its lengthy, unauthorized retention of his personal files located on a hard drive seized via a search warrant in an earlier investigation. Alas, the need for caution was confirmed when an en banc Second Circuit later reversed the Ganias panel’s decision, finding that the agents executing the warrant acted in good faith, and declining to rule on whether or not Stavros Ganias’ Fourth Amendment rights were violated in the first place. 824 F.3d 199 (2d Cir. 2016).
A recent high-profile Fourth Amendment victory for the defense, a June 2017 decision from Southern District of New York Judge Alison J. Nathan suppressing the fruits of two search warrants in United States v. Wey, (__F. Supp.3d __, 2017 WL 2574026 (S.D.N.Y. June 14, 2017)), provides another occasion to assess the state of play as prosecutors, defense counsel, and the courts continue to wrestle with applying Fourth Amendment precedents to today’s “big data.” In this article, we consider Wey in light of the Second Circuit’s final opinion in Ganias, as well as a recent decision by Southern District of New York Judge Kathleen Forrest in In re 650 Fifth Avenue and Related Properties, which declined suppression despite agents’ reliance on a search warrant having constitutional infirmities strikingly similar to those in Wey.
