Restore The Fourth Files Amicus Brief In Critical Fourth Amendment Case

by Alex Marthews, National Chair

Restore The Fourth is turning its hand to something new: Filing its own legal amicus curiae (“friend of the court”) brief in federal appeals court.

The key remedy for Fourth Amendment violations is the ability of defendants to exclude evidence that was seized through an unconstitutional search. However, since 1984, the Supreme Court has narrowed this remedy, finding that exclusion is not required when the officer is relying in good faith on “binding appellate precedent” or on mistakes made by others. In US v. Ganias, a case now being reviewed en banc by the 2nd Circuit, there is a serious risk that this “exclusionary rule” will be narrowed even further.

U. S. v. Ganias involves an investigation of Stavros Ganias, a Connecticut CPA. His hard drive was imaged by Army investigators looking for evidence of contracting fraud by two of the his clients. It took thirteen months for the Army to separate out the Quickbooks files of the two clients. Then, because the Army by now viewed the image of Ganias’s hard drive as “government property”, they never gave the rest of his imaged hard drive’s content back; they felt it might come in useful someday. Two years later, in 2006, the IRS was investigating Mr. Ganias for suspected tax evasion. They asked the Army for the hard drive image from 2003. They got a new warrant, searched the old hard drive, and found evidence of tax evasion. The 2nd Circuit Court of Appeals ruled in Ganias’s favor, declaring that there had been a violation of the Fourth Amendment’s prohibition on unconstitutional searches and seizures, and that the hard drive, as a product of that unconstitutional search, should be excluded. But now, the ruling is being reviewed en banc and may be overturned.

We wanted to do our part in preserving the ability of people targeted by the US government to gain meaningful redress, so we have filed our first ever amicus curiae (=”friend of the court”) brief. With assistance from Mahesha Subbaraman, a brilliant attorney who recently resigned from the Institute for Justice to start his own private practice in Minneapolis, MN, we were able to articulate a compelling argument for why the government cannot simply sit on an ever-increasing pile of seized records for them to rootle through at will when they become useful. The case will be ruled on in September.