Case 1:18-cr-00083-TSE Document 123 Filed 07/10/18 Page 1 of 20 PageID# 2016

THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA,

)
)
)
)
)
)
)

v.
PAUL J. MANAFORT,
Defendant.

Criminal Action No. 1:18-cr-83

MEMORANDUM OPINION
At issue in this multi-count bank and tax fraud prosecution is defendant’s motion to
suppress evidence recovered from a search of his residence in Alexandria, Virginia. Specifically,
defendant contends that the warrant authorizing the search failed to satisfy the Fourth
Amendment’s requirements (i) because the warrant did not clearly describe the evidence to be
seized and (ii) because the scope of the warrant was not limited by the probable cause on which
the warrant was based. Defendant also argues that the execution of the search violated his
Fourth Amendment rights because the executing agents exceeded the scope of the warrant and
unlawfully retained defendant’s personal items.
The government opposes defendant’s motion, contending that the warrant was
sufficiently particularized and limited by the probable cause established in the affidavit. The
government further argues that even assuming the warrant was overbroad, the executing agents’
good-faith reliance on the warrant renders suppression inappropriate.
The issues raised in defendant’s motion have been fully briefed and argued and are now
ripe for disposition.

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I.1
On July 25, 2017, Federal Bureau of Investigation (“FBI”) Special Agent Pfeiffer
submitted an application for a warrant to search defendant’s condominium in Alexandria,
Virginia. The application was based on a 41-page affidavit, which began by describing Special
Agent Pfeiffer’s basis for believing that defendant committed several crimes, including failure to
file a report of foreign bank and financial accounts, in violation of 31 U.S.C. §§ 5314, 5322(a),
filing a false tax return, in violation of 26 U.S.C. § 7206(1), bank fraud in connection with an
extension of credit, in violation of 18 U.S.C. § 1014, mail fraud and wire fraud, in violation of 18
U.S.C. §§ 1341, 1343, and 1349, and money laundering, in violation of 18 U.S.C. §§ 1956 and
1957 (collectively referred to hereafter as the “Subject Offenses”). The affidavit then described
Special Agent Pfeiffer’s belief that pertinent evidence of these crimes, including financial
records, business records, and other materials, would be located at defendant’s condominium.
Aff. ¶¶ 60-80. Specifically, the affidavit described how Special Agent Pfeiffer had interviewed
Alex Trusko (“Trusko”), a current employee of one of defendant’s companies, who revealed that
he had recently visited defendant’s residence, and while there, observed (i) that defendant had a
home office, (ii) that the home office housed a MacBook desktop computer, and (iii) that
defendant stored some records related to his businesses in that home office. See id. ¶¶ 65-71.
Trusko also described defendant’s “widespread use of electronic media in the course of his
business activity” id. ¶ 76, and explained that in defendant’s previous residence, defendant had
retained a drawer of old cellular phones and other electronic equipment. Id. ¶¶ 71, 76.

1

The facts recited here are derived from the testimony of Special Agent Jeffrey Pfeiffer (“Special Agent Pfeiffer”)
at the June 29, 2018 hearing on defendant’s motion to suppress as well as the warrant, the attached affidavit, and the
inventory of items seized from the search of defendant’s residence. Importantly, defense counsel did not seek to
present or elicit any further testimony. See June 29, 2018 Hr’g Tr. at 8:3-6.

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Based on this interview, Special Agent Pfeiffer requested authorization to search
defendant’s residence pursuant to Rule 41, Fed. R. Crim. P. Specifically, the affiant, Special
Agent Pfeiffer, requested authorization to seize electronic devices that may have been used to
commit the Subject Offenses but also any “storage media that reasonably appear to contain some
or all of the evidence described in the warrant.” Aff. ¶ 80.
That same day, on July 25, 2017, a magistrate judge issued a warrant authorizing the
search of defendant’s residence, including “any locked drawers, containers, cabinets, safes,
computers, electronic devices, and storage media (such as hard disks or other media that can
store data) found therein.” Warrant Attach. A. With respect to seizure, Attachment B to the
warrant authorized executing agents to seize “[r]ecords relating to” the Subject Offenses,
“occurring on or after January 1, 2006, including but not limited to:
a. Any and all financial records for Paul Manafort, Jr., [Manafort’s wife], Richard Gates,
or companies associated with [those individuals], including but not limited to records
relating to any foreign financial accounts and records relating to payments by or on
behalf of any foreign government, foreign officials, foreign entities, foreign persons, or
foreign principals;
b. Any and all federal and state tax documentation, including but not limited to personal
and business tax returns and all associated schedules for Paul Manafort, Jr., Richard
Gates, or companies associated with Manafort or Gates;
c. Letters, correspondence, emails, or other forms of communications with any foreign
financial institution, or any individual acting as the signatory or controlling any foreign
bank account;
d. Records relating to efforts by Manafort, Gates, or their affiliated entities to conduct
activities on behalf of, for the benefit of, or at the direction of any foreign government,
foreign officials, foreign entities, foreign persons, or foreign principals, including but not
limited to the Party of Regions and Viktor Yanukovych;
...
h. Communications, records, documents, and other files involving any of the attendees of
the June 9, 2016 meeting at Trump tower, as well as Aras and Amin Agalorov;

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i. Evidence indicating Manafort’s state of mind as it relates to the crimes under
investigation[.]
Warrant Attach. B ¶ 1.
Attachment B to the warrant further authorized executing agents to seize (i) “[c]omputers
or storage media used as a means to commit the Subject Offenses,” id. ¶ 2, and (ii) specific
categories of information on “any computer or storage medium that contains or in which is
stored records or information that is otherwise called for by this warrant[,]” id. ¶ 3.
On July 26, 2017, the day after the warrant issued, the government executed the warrant
and searched defendant’s residence. As a result of the search, the executing agents seized
financial and other records as well as several electronic devices and storage media, including:
memory cards from several cameras, iPods, iPads, a Macbook Air computer, and an external
hard drives. See Warrant Return Attach. A. The government also imaged, or made digital copies
of, several devices during the search, thereby allowing defendant to retain the original devices.2
Also during the search, the government flagged and separated materials as being potentially
subject to attorney-client privilege. See id. Attach. C.

Since the search, the government has

conducted ongoing privilege and relevance reviews, making efforts to separate and to remove
irrelevant materials and offering defendant and counsel the opportunity to gain insight into the
review process and to examine any identified irrelevant material. See Letter from Robert S.
Mueller, III, Special Counsel, to Kevin M. Downing, Law Offices of Kevin Downing (Dec. 1,
2017); Letter from Robert S. Mueller, III, Special Counsel, to Kevin M. Downing, Law Offices
of Kevin Downing 3, 11 (Nov. 17, 2017).

2

For example, the executing agents imaged an iMac, iPod Touch devices, iPads, iPhones, and flash drives. See id.
Attach. B.

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On April 30, 2018, defendant filed the motion to suppress the evidence recovered from
the July 25, 2017 search of defendant’s residence on grounds that (i) the warrant did not clearly
describe the evidence to be seized, (ii) the scope of the warrant was not limited by the probable
cause on which the warrant was based, and (iii) the executing agents exceeded the scope of the
warrant and unlawfully retained defendant’s personal items.

The government opposes

defendant’s motion, contending that the warrant was adequately particularized and limited by the
probable cause established in the affidavit. The government further argues that even assuming
the warrant was overbroad, the executing agents’ good-faith reliance on the warrant renders
suppression inappropriate.
II.
Analysis of defendant’s motion to suppress evidence seized during the search of
defendant’s residence first requires a determination whether the search warrant at issue was valid
under the Fourth Amendment. The Fourth Amendment guarantees “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures” and 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.” U.S. Const. Amend. IV. As the Supreme Court has recognized, “[b]y limiting the
authorization to search to the specific areas and things for which there is probable cause to
search,” the Fourth Amendment “ensures that the search will be carefully tailored to its
justifications, and will not take on the character of the wide-ranging exploratory searches the
Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). In this regard,
courts have interpreted the Fourth Amendment’s requirements to encompass two related but

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distinct concepts: particularity and breadth. United States v. Ulbricht, 858 F.3d 71,102 (2d Cir.
2017); United States v. Hill, 459 F.3d 966, 973 (9th Cir. 2006).
With respect to particularity, the Fourth Circuit has made clear that a warrant generally
satisfies the Fourth Amendment’s particularity requirement where “the warrant identifies the
items to be seized by their relation to designated crimes and when the description of the items
leaves nothing to the discretion of the officer executing the warrant.” United States v. Dargan,
738 F.3d 643, 647 (4th Cir. 2013) (quoting United States v. Williams, 592 F.3d 511, 519 (4th Cir.
2010)). At the same time, Fourth Circuit precedent requires that courts “refrain from interpreting
warrant terms in a ‘hypertechnical’ manner, and . . . instead employ a ‘common sense and
realistic’ approach.” Id. (quoting Williams, 592 F.3d at 519). In this regard, “[t]he degree of
specificity required when describing the goods to be seized may necessarily vary according to
the circumstances and type of items involved.” In re Grand Jury Subpoena, 920 F.2d 235, 239
(4th Cir. 1990) (quoting United States v. Torch, 609 F.2d 1088, 1090 (4th Cir. 1979)).
The related concept of breadth requires that the scope of the warrant “be limited by the
probable cause on which the warrant is based.” Hill, 459 F.3d at 973 (internal citation and
quotation marks omitted). In this respect, the Supreme Court has made clear that probable cause
exists where there is a “fair probability that contraband or evidence of a crime will be found” in
the premises to be searched. Illinois v. Gates, 426 U.S. 213, 238 (1983). This fair probability is
the kind of probability “on which reasonable and prudent people, not legal technicians, act.”
Florida v. Harris, 568 U.S. 237, 244 (2013) (internal quotation marks and brackets omitted).
And importantly, “[a] magistrate’s ‘determination of probable cause should be paid great
deference by reviewing courts.”’ Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393
U.S. 410, 419 (1969)).

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These principles, applied here, point persuasively to the conclusion that the warrant
satisfied the Fourth Amendment’s particularity and breadth requirements, and as such,
suppression of the evidence recovered from the search of defendant’s residence is not warranted.
A.
To begin with, the warrant’s description of the items subject to seizure was adequately
particularized because the warrant identified the items to be seized by their relation to designated
crimes and in so doing adequately limited the executing agents’ discretion.

Specifically,

Attachment B to the warrant authorized agents to seize “[r]ecords relating to” any of the Subject
Offenses, including
violations of 31 U.S.C. §§ 5314, 5322(a) (failure to file a report of foreign bank and
financial accounts); 22 U.S.C. § 611, et seq. (foreign agents registration act); 26 U.S.C. §
7206(1) (filing a false tax return); 18 U.S.C. § 1014 (fraud in connection with the
extension of credit); 18 U.S.C. §§ 1341, 1343, 1349 (mail fraud, wire fraud, and
conspiracy to commit these offenses); 18 U.S.C. §§ 1956 and 1957 (money laundering
and money laundering conspiracy); 52 U.S.C. §§ 30121(a)(1)(A) and (a)(2) (foreign
national contributions); and 18 U.S.C. §§ 371 and 2 (conspiracy, aiding and abetting, and
attempt to commit such offenses) … .
Warrant Attach. B ¶ 1. In this regard, the executing agents were authorized “to seize only
evidence of a particular crime” and could not engage in exploratory searches for general
evidence of criminality. United States v. Fawole, 785 F.2d 1141, 1144 (4th Cir. 1986).3

In

addition to requiring that the evidence seized be related to specific crimes, the warrant also
identified an illustrative list of the records at issue, including, for example, financial records, tax
statements, and communications associated with foreign clients. See Warrant Attach. B ¶¶ 1(a)(g). Notably, courts have held that a warrant meets Fourth Amendment particularity requirement
where, as here, the warrant contains a description of the items to be seized that is “delineated in

3

Compare United States v. Hoang Anh Thi Duong, 156 F. Supp. 2d 564, 571 (E.D. Va. 2001) (holding warrant was
excessively broad under the Fourth Amendment where the warrant failed to “identif[y] the crime for evidence of the
commission of which the agents were supposed to search defendants’ residence”).

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part by an illustrative list of seizable items[.]” United States v. Riley, 906 F.2d 841, 844–45 (2d
Cir. 1990). In reaching this conclusion, courts have recognized that where, as here, a warrant
contains an illustrative list of records, that list further limits the discretion of the executing agents
by requiring executing agents to construe the warrant in light of the illustrative list and to seize
only records similar to those records listed in the warrant. Id.
In an effort to avoid this conclusion, defendant argues that some of the enumerated
categories of evidence, namely paragraphs 1(a), 1(i), and 2,4 were phrased so broadly as to
provide no meaningful guidance to an executing officer. This argument is unpersuasive because,
as noted supra, Fourth Circuit precedent recognizes that “[t]he degree of specificity required
when describing the goods to be seized may necessarily vary according to the circumstances and
type of items involved.” In re Grand Jury Subpoena, 920 F.2d at 239 (quoting Torch, 609 F.2d
at 1090). In this regard, “a warrant that describes the items subject to seizure in broad, generic
terms can be valid if the description is as specific as the circumstances and the nature of the
activity under investigation permit.” United States v. Young, 260 F. Supp. 3d 530, 548 (E.D. Va.
2017) (quoting Godbey v. Simmons, 2014 WL 345648, at *6-7 (E.D. Va. Jan. 30, 2014), aff’d,
577 F. App’x 239 (4th Cir. 2014)).
The circumstances and nature of the activity here permit the use of the broad categories at
issue in the warrant. For example, where, as here, a defendant is alleged to have committed
complex tax and banking crimes, the Fourth Circuit has recognized that all “the financial records
of a suspect may well be highly probative of violations of a federal fraud statute” even where the
probative value of a particular document may not be readily apparent.

4

United States v.

These paragraphs authorize the executing agents to seize “any and all financial records for [defendant],
[defendant’s wife], Richard Gates, or companies associated with [those individuals][,]” “[e]vidence indicating
[defendant’s] state of mind as it relates to the crimes under investigation[,]” and “[c]omputers or storage media used
as a means to commit the Subject Offenses[.]” Warrant Attach. B ¶¶ 1(a), 1(i), 2.

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Srivastrava, 540 F.3d 277, 292 (4th Cir. 2008) (citation omitted). Accordingly, the warrant’s
authorization of seizure of “all financial documents” was sufficiently specific given the nature of
offense at issue here. See, e.g., United States v. Fattah, 858 F.3d 801, 819-20 (3d Cir. 2017)
(rejecting, in prosecution alleging bank fraud and other offenses, challenge to a warrant that
“authorized the seizure of a number of document types, including ‘[a]ll financial records’”).
Similarly, evidence relevant to establishing a defendant’s state of mind at the time he
allegedly committed fraud-related crimes, such as the Subject Offenses at issue here, can often
come from records and evidence separate from, and unrelated to, the allegedly criminal
transactions themselves. See, e.g., Andresen v. Maryland, 427 U.S. 463, 483-84 (1976) (finding
that documents relating to one transaction were relevant evidence of the defendant’s state of
mind when he engaged in a different allegedly fraudulent transaction). For this reason, courts
have rejected challenges to warrants that, as in the warrant here, broadly authorize seizure of
evidence related to a defendant’s state of mind. See, e.g., United States v. Tsarnaev, 53 F. Supp.
3d 450, 455-57 (D. Mass. 2014) (rejecting challenge to warrant that authorized seizure of
“[p]roperty, records, or information related to the state of mind and/or motive”).
Finally, where, as here, the government does not know which specific electronic devices
or media were used to perpetrate an alleged offense or to conceal evidence thereof, courts have
upheld warrants authorizing the seizure of any “electronic media that could have been used as a
means to commit the offenses described in the warrant.” United States v. Loera, 59 F. Supp. 3d
1089, 1151-52 (D.N.M. 2014). Accordingly, the warrant here was adequately particularized
insofar as it authorized executing agents to seize “[c]omputers or storage media used as a means
to commit the Subject Offenses[.]” Warrant Attach. B ¶ 2.

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Defendant relies on United States v. Griffith, 867 F.3d 1265 (D.C. Cir. 2017) to argue
that the warrant could not validly authorize seizure of defendant’s computers and storage media.
Defendant’s reliance on Griffith is misplaced. In Griffith, the D.C. Circuit held that the warrant
there in issue violated the Fourth Amendment in part because the warrant failed to limit “the
scope of permissible seizure to [electronic] devices . . . linked to the [crime.]” Id. at 1276. Here,
by contrast, the terms of the warrant limited the permissible search and seizure to electronic
devices used as means to commit, or containing evidence of, the Subject Offenses. Warrant
Attach. B ¶¶ 1-3. The Griffith court also faulted the warrant there in issue for failing to limit “the
scope of permissible seizures to [electronic] devices owned by [the defendant]” given that the
affidavit in that case provided no factual basis on which to seize electronic devices of the
defendant’s family members. Griffith, 867 F.3d at 1276. But that limitation is not appropriate
here because the affidavit in this case clearly established the relevance of records associated with
not just defendant but also with defendant’s family. For example, the affidavit reflected that
several of defendant’s allegedly criminal transactions included transfers from offshore accounts
into accounts defendant jointly held with his wife. Aff. ¶¶ 12, 21. The affidavit also described a
bank-fraud scheme that involved a multi-million dollar loan to a limited liability company owned
by defendant’s wife. Id. ¶¶ 27, 34. As such, unlike in Griffith, the agents here had reason to
believe that electronic devices belonging not just to defendant, but also to defendant’s wife,
would contain evidence of the Subject Offenses. Accordingly, the warrant’s description of the
electronic devices to be seized was adequately particularized given the facts and circumstances
of this case.
In sum, the warrant here (i) identified the items to be seized in relation to specific Subject
Offenses, (ii) included an illustrative list of records to limit the discretion of executing agents,

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and (iii) provided a sufficient description of the categories of items to be seized given the nature
and circumstances of the crimes at issue. Accordingly, the warrant was adequately particularized
and suppression on this ground is inappropriate.
B.
The warrant also satisfied the Fourth Amendment’s breadth requirement inasmuch as the
warrant and the attached affidavit established probable cause to believe that evidence of the
Subject Offenses would be found at defendant’s residence. Specifically, the affidavit reflected
that Trusko, defendant’s employee, told Special Agent Pfeiffer that defendant “used his home to
do business and maintained records of his businesses at his home.” Aff. ¶ 65, 66. Indeed,
Trusko informed Special Agent Pfeiffer that Trusko had personally observed business records in
defendant’s home office as recently as May 2017. Id. ¶ 66, 67. The affidavit also established
probable cause to believe that evidence of the Subject Offenses would be found on electronic
devices in defendant’s home. Specifically, the affidavit explained that Trusko told Special Agent
Pfeiffer that defendant had a Mac Desktop computer in the designated office space of his
residence. See id. ¶ 76. The affidavit also disclosed that Trusko had told Special Agent Pfeiffer
that defendant made widespread use of electronic media in his business activity. Id. And Trusko
knew this fact because Trusko noted that he had, on several occasions, wiped defendant’s old
computers and cellular phones before giving the devices to charity and had observed a drawer of
old electronic devices in defendant’s former5 residence. Id. Finally, Special Agent Pfeiffer, in
his affidavit, noted generally that electronic devices often contain not only substantive evidence
of a criminal offense—e.g., emails or bank records—but also records revealing how the devices
have been used—e.g., usernames, and computer account session times and durations—evidence

5

The fact that Trusko observed the drawer in a previous residence does not undermine the conclusion that the
affidavit established probable cause to believe that the defendant used electronic devices in his current residence.

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which might aid in establishing the “who, what, why, when, where, and how” of the criminal
conduct under investigation. Id. ¶ 78(b).
These facts, taken together, lend ample support to the common-sense conclusion reached
by the magistrate judge here, namely that probable cause existed to believe (i) that defendant’s
electronic devices would contain evidence relevant to the Subject Offenses and (ii) that the
devices in question would be located at defendant’s residence.
In an attempt to avoid this conclusion, defendant again relies chiefly on United States v.
Griffith, 867 F.3d 1265 (D.C. Cir. 2017). But here again, Griffith is of no aid to defendant; it is
inapposite in this context, as well. In Griffith, the D.C. Circuit determined that the warrant and
the attached affidavit there did not establish probable cause to believe the defendant had a cell
phone because the affidavit did not contain any information specific to the defendant; instead,
the affidavit relied only on the general assumption that individuals in modern society often use
cell phones. Here, by contrast, in addition to stating the general, common-sense proposition that
individuals often use electronic media for storage purposes, Special Agent Pfeiffer’s affidavit
also provided information specific to defendant.

For example, the affidavit explained

specifically that Special Agent Pfeiffer’s interview of Trusko revealed that defendant “has made
widespread use of electronic media in the course of his business activity.” Aff. ¶ 76. And
Special Agent’s interview with Trusko further confirmed that defendant had an office in his
home which contained a desktop computer.

Thus, unlike in Griffith, there was ample

individualized and specific support in Special Agent Pfeiffer’s affidavit for the magistrate
judge’s conclusion, namely that defendant used electronic media in his business and that
defendant at times conducted that business in his residence.

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In sum, the warrant here also satisfied the breadth requirement of the Fourth Amendment
by adequately limiting the scope of the warrant by the probable cause on which the warrant was
based. Accordingly, suppression on this ground is unwarranted.
C.
Even assuming, arguendo, that the search warrant for defendant’s residence was fatally
overbroad and lacking in the requisite particularity, suppression would not be warranted given
that the searching agents acted in good-faith reliance on the warrant. As the Supreme Court
explained in United States v. Leon, 468 U.S. 897 (1984), the question whether evidence should
be excluded “is ‘an issue separate from the question whether the Fourth Amendment rights of the
party seeking to invoke the rule were violated by police conduct.’” Id. at 907. This is so because
the exclusionary rule is neither “a personal constitutional right” nor is it “designed to redress the
injury occasioned by an unconstitutional search[.]” Instead, as the Supreme Court has made
clear, the exclusionary rule “is a prudential doctrine, created by [the Supreme Court] to compel
respect for the constitutional guaranty” and to deter future Fourth Amendment violations by law
enforcement. Davis v. United States, 564 U.S. 229, 236-37 (2011) (internal quotations and
citations omitted). Given these principles, the Supreme Court has sensibly declined to apply the
exclusionary rule “when the police conduct a search in ‘objectively reasonable reliance’ on a
warrant later held invalid” because in those cases, exclusion produces very few deterrent benefits
when compared to the “‘substantial social costs’ generated by the rule.” Id. (quoting Leon, 468
U.S. at 922).
Examination of the warrant and the affidavit in this case compels the conclusion that the
executing agents acted in objectively reasonable reliance on the warrant and as such, suppression
of the evidence recovered from the search of defendant’s residence is unwarranted. Special

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Agent Pfeiffer prepared a 41-page affidavit which set forth factual allegations establishing (i)
probable cause to believe defendant committed the Subject Offenses, and (ii) probable cause to
believe evidence of these Subject Offenses would be located in defendant’s residence. Special
Agent Pfeiffer then submitted the warrant application for review and approval by prosecutors.
Once the warrant application was approved internally, Special Agent Pfeiffer submitted the
application to a neutral and detached magistrate judge, who found the requisite probable cause
and issued the warrant.
Defendant argues the good-faith exception to the exclusionary rule should not apply here
because the affidavit at issue here (i) was “facially deficient” in its failure to particularize the
place to be searched and the things to be seized and (ii) was “so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923
(internal quotation marks omitted). This argument fails to persuade as it is based on defendant’s
mischaracterization of the warrant and the affidavit in this case. Clearly the warrant at issue here
was not so facially deficient that “the executing officers [could] not reasonably presume it to be
valid.” Id. Indeed, as described supra Section II.A, courts have routinely rejected particularity
challenges to warrants using the same broad categories contained in this warrant—i.e., any and
all financial records, evidence of state of mind, and electronic devices and storage media. Given
that courts have approved warrants containing the same language as the warrant at issue here,6 it
is inconceivable that “a reasonably well trained officer would have known that” the warrant was
invalid “despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n.23.

6

See, e.g., Fattah, 858 F.3d at 819-20 (rejecting, in prosecution alleging bank fraud and other offenses, challenge to
a warrant that “authorized the seizure of a number of document types, including ‘[a]ll financial records’”); Tsarnaev,
53 F. Supp. 3d at 455-57 (rejecting challenge to warrant that authorized seizure of “[p]roperty, records, or
information related to the state of mind and/or motive”); Loera, 59 F. Supp. 3d at 1151-52 (rejecting challenge to
warrant that authorized the seizure of any “electronic media that could have been used as a means to commit the
offenses described in the warrant”).

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Nor was the affidavit “so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.” Id. at 923. To the contrary, the affidavit pointed to
specific evidence gleaned from an interview with defendant’s self-described “personal assistant”
who explained that he had recently been in defendant’s residence, that he had observed a home
office and a computer in defendant’s residence, and that he knew defendant conducted business
and stored business records at home.

These facts, far from bare bones allegations, were

sufficiently detailed and specific to defendant for a reasonable officer to believe in the existence
of probable cause and to rely on the magistrate judge’s finding in that regard.
In sum, even assuming that the warrant at issue here was fatally overbroad and lacking in
the requisite particularity, the warrant was not so facially deficient or lacking in probable cause
that a reasonably well-trained officer would have known not to rely on the warrant in executing
the search.

Accordingly, this case falls squarely within the good-faith exception to the

exclusionary rule, and suppression is inappropriate.
III.
The next step in the suppression analysis is to consider whether the search was executed
in a constitutionally permissible manner. It is well-settled that “a search conducted pursuant to a
warrant is limited in scope by the terms of the warrant’s authorization.” United States v. Kimble,
855 F.3d 604, 610 (4th Cir. 2017) (quoting United States v. Phillips, 588 F.3d 218, 223 (4th Cir.
2009)). In this regard, the Fourth Circuit has made clear that “the seizure of items not described
in the warrant violates the Fourth Amendment—and the items should be suppressed—unless an
exception to the warrant requirement applies.” United States v. Legg, 18 F.3d 240, 242 (4th Cir.
1994).

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Defendant contends that the agents executing the search warrant on defendant’s residence
violated these principles when the agents seized and imaged nearly every electronic and media
device in defendant’s home, including an Apple iPod, Apple iPod Touch devices, and several
personal devices, such as a camera and camcorder. Specifically, defendant contends that no
reasonable agent could have believed that these personal electronic devices were used to commit
the tax and bank fraud crimes alleged in the affidavit and the warrant application. But this
argument fails because it misunderstands the scope of the warrant.

The warrant not only

authorized the search and seizure of electronic devices used to commit the Subject Offenses, but
the warrant also authorized the search of “computers, electronic devices, and storage media” that
could be used to store the categories of records described in paragraph 1 of the warrant. Warrant
Attach. B ¶ 3. Although a reasonable officer might not believe that a defendant used an iPod, an
iPod Touch, or a camcorder to commit bank fraud, courts have routinely recognized that these
same devices can be used to store evidence of fraud-related crimes. See, e.g., United States v.
Ballard, 551 F. App’x 33, 36 (3d Cir. 2014); United States v. Schesso, 730 F.3d 1040, 1047 (9th
Cir. 2013). Accordingly, because officers seized only items within the scope of the warrant and
acted reasonably in doing so, the warrant was executed in a constitutionally permissible manner.
Even assuming that the executing agents exceeded the scope of the search warrant by
imaging and seizing defendant’s personal electronic devices, suppression of all the evidence
recovered from the search of the residence would nonetheless be unwarranted. This is so as the
Fourth Circuit has held that “[a]s a general rule, if officers executing a search warrant exceed the
scope of the warrant, only the improperly-seized evidence will be suppressed; the properlyseized evidence remains admissible.” United States v. Squillacote, 221 F.3d 542, 556 (4th Cir.
2000). Blanket suppression is only justified in extraordinary circumstances where “the officers

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executing the warrant exhibit a flagrant disregard for its terms” by, for example, seizing “large
quantities of evidence clearly not within the scope of the warrant.” Id.
No such extraordinary circumstances exist here, and as such, blanket suppression is not
warranted even assuming the executing agents exceeded the scope of the warrant. Far from large
quantities of evidence, defendant identifies approximately 15 of the more than 70 items seized as
allegedly exceeding the scope of the warrant, including Apple iPods, Apple iPod Touch devices,
and memory cards from Nikon cameras, a Casio camera, Sony cameras, and a Go Pro Hero
camera. These devices are clearly covered by the terms of the warrant, which, as described
above, authorized the executing agents to search and seize both electronic devices potentially
used in the commission of the Subject Offenses and electronic devices or storage media
containing the categories of records described in the warrant. Warrant Attach. B ¶ 3. Because
the record reflects that the executing agents did not flagrantly disregard the terms of the warrant
by seizing large quantities of evidence not described therein, blanket suppression of the evidence
recovered from the search of the residence is plainly not appropriate here. Compare United
States v. Foster, 100 F.3d 846, 850 (10th Cir. 1996) (finding law enforcement officers flagrantly
disregarded terms of warrant where the warrant listed four firearms and marijuana as the items to
be seized but officers seized “anything of value,” including a “BB gun, drill, TVs, lawnmower,
coveralls, socket set, clock radio, coins, knives, jewelry, etc.” ).
Given that blanket suppression is not justified, the general rule in the Fourth Circuit
would require suppression only of those approximately 15 items defendant identified as
exceeding the scope of the warrant. Because the government has indicated that it does not intend
to use these items at trial, see Gov’t Opp at 19, even this more circumscribed suppression is not
necessary.

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Defendant further argues that the agents’ execution of the search was constitutionally
flawed because the government retained the items seized from the search of defendant’s
residence for more than a year without making an effort to segregate irrelevant or privileged
items. Contrary to defendant’s assertions, the record makes clear that the government has
conducted a timely and reasonable review of the documents seized from the search of the
residence. During the search itself, the government imaged many of the electronic devices,
allowing defendant to retain the original electronic device and seizing only the imaged copy of
the devices. Furthermore, the executing agents, aware of potential privilege issues, flagged and
separated potentially privileged materials while executing the search. Since the search, the
government has conducted ongoing privilege and relevance reviews, making efforts to separate
and to remove irrelevant and privileged materials and offering defendant and his counsel the
opportunity to gain insight into the review process and to examine any identified irrelevant
material. See, e.g., Letter from Robert S. Mueller, III, Special Counsel, to Kevin M. Downing,
Law Offices of Kevin Downing 3, 11 (Nov. 17, 2017).
Nor does defendant succeed in equating the government’s seizure and retention of items
here to the government’s seizure and retention of items that warranted suppression in United
States v. Metter, 860 F. Supp. 2d 205 (E.D.N.Y. 2012), United States v. Debbi, 244 F. Supp. 2d
235 (S.D.N.Y. 2003), and United States v. Comprehensive Drug Testing, 621 F.3d 1162, 1171
(9th Cir. 2016). These cases are inapposite. In Metter, the court granted a motion to suppress
where the government had retained “all imaged electronic documents . . . without any review” to
determine either relevance or the applicability of privileges for fifteen months. 860 F. Supp. 2d at
215. Similarly, in Debbi, the government failed to conduct any privilege or relevance review in
the eight months following its seizure of defendant’s documents and returned only “a limited

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portion of improperly seized materials” despite repeated requests from defense counsel. 244 F.
Supp. 2d at 237-38.

Finally, in Comprehensive Drug Testing, the government retained

documents not described in the warrant for at least six months even after locating the relevant
subset of documents within those seized. 621 F.3d at 1171. Here, by contrast, privilege review
began during the search, and the government has conducted ongoing privilege and relevance
review since then, regularly updating defendant on its progress. Moreover, the government has
offered defendant the opportunity to review irrelevant materials segregated through the
government’s review process, but defendant to date has declined to do so.
Thus, the record reveals that the government seized items within the scope of the terms of
the warrant and that the government has made reasonable efforts since the search to separate out
irrelevant and privileged materials, to make arrangements to discuss the segregation process with
defendant, and to return evidence when possible. Accordingly, the execution of the search was
reasonable and there is no basis for suppression on this ground.
IV.
In sum, the record reflects that the warrant authorizing the search of defendant’s
residence was not constitutionally infirm.

Specifically, the warrant was adequately

particularized given the nature and circumstances of the crimes allegedly at issue, and the
warrant was limited in scope by the probable cause established in the affidavit. Even assuming
the warrant was overbroad and insufficiently particularized, the searching officers’ good-faith
reliance on the warrant was reasonable as the warrant was neither so facially deficient nor so
lacking in indicia of probable cause as to render an officer’s reliance on the warrant
unreasonable. Finally, when conducting the search, the executing agents searched and seized
only items within the scope of the warrant and made reasonable efforts to segregate and to return

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any privileged or non-responsive items recovered from the search. For these reasons, there are
no grounds for suppression of the evidence recovered from the search of defendant’s home, and
defendant’s motion must be denied.

Alexandria, Virginia
July 10, 2018

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