case law update

Government May Retain and Use Evidence Collected Outside Scope of Warrant, DOJ Argues

The government may retain computer evidence obtained outside the scope of an original, probable-cause search warrant and prosecute people for crimes based on that evidence, the Justice Department argued this week before the U.S. Court of Appeals for the Second Circuit, sitting en banc.

In November 2003, Army Criminal Investigation Command agents obtained a search warrant for files related to one of accountant Stavros Ganias’s clients, for CID’s investigation into whether that client was overbilling the Army for contracted services. Executing the warrant, CID agents made exact, digital copies of three of Ganias’s business computers, copying Ganias’s personal financial records in addition to records related to the subject of CID’s investigation.

CID invited the Internal Revenue Service to join in its investigation in May 2004, giving the IRS a complete copy of Ganias’s computers. In February 2006, Ganias learned the government had retained his personal financial records when agents asked him to consent to a search of those files. When Ganias did not respond to that request, the government obtained a warrant in April 2006, to search its copy of Ganias’s computers for data related to the business, financial, and accounting activities of Ganias and his client.

After obtaining the 2006 search warrant, the government examined Ganias’s personal financial records and used the information therein to charge and to convict Ganias with tax evasion. Ganias appealed the district court’s pre-trial denial of his motion to suppress the computer evidence to the Second Circuit, where a three-judge panel held the government “clearly violated Ganias’s Fourth Amendment rights” when it seized his non-responsive personal files and retained them for two and a half years without judicial approval, until “finally developing probably cause to search and seize them.” The appeals court subsequently approved the government’s request for a rehearing en banc.

The question before the en banc panel is how long the government can retain personal computer files, not covered by a warrant. Ganias contended that once the government had identified the files relevant to its investigation into Ganias's client, it should have deleted the rest of the files from Ganias’s computers. The government disagreed, arguing its interests in retaining evidence until its investigation and prosecution had ended overrode any possessory interest Ganias had in his computer data.

Oral arguments took place before the en banc Second Circuit on September 30, 2015. We will let you know the decision of the court, when it issues.

Government’s brief

Ganias’s brief


This case law update was written by James P. Garay Heelan, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases

Posted in Case Law Update

Tags: case law update, michael s causey


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