03/02/2020 US v. Ganias, 755 F. 3d 125 - Court of Appeals, 2nd Circuit 2014 - Google Scholar Amendment, I respectfully dissent from that portion of the opinion which holds that in this case the evidence should be suppressed. The exclusionary rule is a "deterrent sanction" created by the Supreme Court to "bar[] the prosecution from introducing evidence obtained by way of a Fourth Amendment violation." Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419, 2423, 180 L.Ed.2d 285 (2011). The Supreme Court has cautioned, however, that "exclusion [should be] `our last resort, not our first impulse.'" Herring v. United States, 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006)). This is so because the rule is "`not a personal constitutional right,' nor is it designed to `redress the injury' occasioned by an unconstitutional search[,] ... [its] sole purpose... is to deter future Fourth Amendment violations." Davis, 131 S.Ct. at 2426 (citations omitted). The rule specifically deters "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Herring, 555 U.S. at 144, 129 S.Ct. 695. "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the 142 price paid by the justice system." Id. In general, "searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.... [as] the harsh *142 sanction of exclusion `should not be applied to deter objectively reasonable law enforcement activity.'" Davis, 131 S.Ct. at 2423-24, 2429 (citation omitted). In this case, I cannot agree with the majority's determination that the Government acted in bad faith. The documents were seized pursuant to a warrant and the non-responsive documents were culled and segregated. While testimony reveals that the Government mistakenly considered the mirror images it created of the non-responsive documents as its own property, there was little caselaw either at the time of the search or in the following years to indicate that the Government could not hold onto the non-responsive material in the way it did. Where caselaw existed, the Government complied with the guidelines for the seizure and offsite search of large amounts of documents. See United States v. Tamura, 694 F.2d 591, 595-96 (9th Cir. 1982) (noting that "[i]n the comparatively rare instances where documents are so intermingled that they cannot feasibly be sorted on site," the Government may seize items outside the scope of the warrant under certain conditions). What is more, the Government scrupulously avoided reviewing files that it was not entitled to review before obtaining the 2006 search warrant. With respect to the balancing between deterrence and the cost of suppression, because the Government's actions did not violate established precedent at the time of the search, I do not perceive a need for deterrence. "[A]ll that exclusion would deter in this case is conscientious police work." Davis, 131 S.Ct. at 2429. Additionally, as Ganias himself stated, the evidence to be suppressed in this case would not have existed but for the Government's retention of the nonresponsive materials. The evidence to be suppressed is thus, contrary to the majority's conclusion, of the same irreplaceable nature as guns or drugs. Moreover, in light of the serious and nefarious effects of money fraud crimes on society, see, e.g., United States v. Madoff, No. 09 Crim. 213(DC), 2009 WL 3347945 (S.D.N.Y. Oct. 13, 2009), I am loathe to conclude that guns, drugs and/or contraband are the only indicia of a dangerous defendant. Accordingly, while I agree that the Government violated the defendant's Fourth Amendment rights to be free from an unreasonable seizure because it held for a prolonged period of time mirror images of computer-generated records that were not responsive to the 2003 search warrant without returning them (or destroying them), I see no reason to suppress the evidence derived therefrom under the circumstances presented. [*] The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation. [1] The facts relevant to the issues on appeal are largely undisputed and are drawn from the testimony at the hearing on Ganias's motion to suppress, the decision of the district court (Thompson, J.) denying the suppression motion, and the transcript of the trial. [2] The record reflects that Ganias, whose first name is Stavros, was often referred to as "Steve." [3] All the other counts were later dismissed. [4] See, e.g., Fumo, 655 F.3d at 331 (Nygaard, J., concurring) ("The availability of the Internet and the abiding presence of social networking now dwarf the previously held concern that a juror may be exposed to a newspaper article or television program."); United States v. Juror Number One, 866 F.Supp.2d 442, 451 (E.D.Pa.2011) ("[T]he extensive use of social networking sites, such as Twitter and Facebook, have exponentially increased the risk of prejudicial communication amongst jurors and opportunities to exercise persuasion and influence upon jurors."). See generally Amy. J. St. Eve & Michael A. Zuckerman, Ensuring an Impartial Jury in the Age of Social Media, 11 Duke L. & Tech. Rev. 1 (2012). [5] Judicial Conference Comm. on Court Admin. & Case Mgmt., Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (December 2009), available at www.uscourts.gov/uscourts/News/2010/docs/DIR10-018-Attachment.pdf. [6] Id. [7] In this case, the Government has conceded that it needed a warrant to search the non-responsive computer files in its possession and has not argued that any exceptions apply. https://scholar.google.com/scholar_case?case=16926744034394821172&hl=en&as_sdt=6&as_vis=1&oi=scholarr 10/11