New York Federal Criminal Practice Blog

Recently in the Search and Seizure category:


The NYSACDL has published its latest edition of Atticus, focusing on the organization’s often unsung and unknown efforts to influence the legislative process.  It includes my article addressing three recent Second Circuit decisions, including Capers (setting up some serious hurdles to the admission of statements obtained through a “two-step”– question first, Mirandize later – interrogation procedure), Cossey (“a sentencing decision that relies on factual findings that were unsupported in the record . . . seriously affects the fairness, integrity, and public reputation of judicial proceedings”), and Brown (“when a claim of ineffective assistance of counsel is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding.”) 
The NYSACDL has published its fall issue of Atticus.  Judge Bellacosa has contributed an eloquent piece in support of open-file discovery, relevant both to state and federal prosecutorial practices, highlighting the success of a project in the Brooklyn DA's office, and advocating a state-wide statutory authorization, with uniform standards of application and accountability.  Mark Hosken of the WDNY Federal Defender has contributed a notable piece on the Ex Post Facto Clause in a post-Booker world, and I have contributed a piece on some recent decisions from the Second Circuit, including the Rajaratnam and Amanuel cases on wiretaps, the Martinez case on Batson, and Ortiz on sentencing. 
The NYSACDL has published the second edition of its excellent revitalized Atticus.  It's well worth checking out - Donna Newman gives a fascinating fly-on-the-wall account of the Russian spy case, and Donald Thompson has a moving essay on a wrongful conviction.  I have also contributed a piece highlighting some recent Second Circuit cases, including three cases not previously mentioned in this blog:  United States v. Julius (suppression); United States v. Sabhnani (liability for omissions, and also interesting on the issue of venue transfer and psychological evaluations of government witnesses); and United States v. Oluwanisola (proffer statements). 
Federal Defender Roland Thau demonstrates the power of that most basic defense technique: crime scene investigation.  In United States v. Gomez, 2010 WL 431878 (S.D.N.Y. February 8, 2010), Mr. Thau’s client was arrested for trespass in a public park at midnight, searched and charged with possession of the “hard metal object” found in his pocket.  Thau moved to suppress the gun on the grounds that the arrest was made without probable cause.  Trespass under New York State law requires that the defendant enter property “fenced or otherwise enclosed in a manner designed to exclude intruders” and “notice [of the trespass] is given by posting in a conspicuous manner.”  Thau’s crime scene investigation established that the park’s many entrances were wide open at night and the signage regarding opening hours could be “practically invisible,” depending on one’s approach to the park.  There was therefore no reasonable suspicion, much less probable cause, to believe that Mr. Gomez had committed the crime of trespass, and SDNY Judge Sweet suppressed the seized gun.  Well done Roland!

Lawyers: Roland Thau, Federal Defenders, Inc. (Defendant); AUSA Jessica Ortiz
Does a newspaper have a right of access to wiretap applications that led to the downfall of New York’s governor?  SDNY Judge Rakoff had said yes (see here), but the Second Circuit disagreed in In the Matter of the Application of The New York Times Company to Unseal Wiretap & Search Warrant Materials, 2009 WL 2526486 (2d Cir., August 20, 2009) (Spitzer II).  Presenting a stark contrast to Judge Rakoff’s pro-disclosure decision, the Court reversed his unsealing order, holding that the newspaper was not an “aggrieved person” in order to satisfy Title III’s “good cause” requirement for disclosure, and that it had no First Amendment right of access to the records.  The case is an important (and unfortunately restrictive) one on the right of the press to scrutinize judicial documents, and thus judicial and prosecutorial processes.  It is also an important precedent for those defendants who may want to shield some of the more salacious details of their alleged wrongdoing from public voyeurism.


In lines that beg a key chicken and egg question, the Court states:  “In March 2008, the government charged four people with running a prostitution ring called the ‘Emperor’s Club.’  Soon after, the news media identified Governor Spitzer as a client of the ring; Spitzer resigned his office within days.”  The New York Times sought access to the applications underlying wiretap surveillance in the case, which, may have revealed the origins and motivations behind this unusual federal probe of a high-end escort service involving consenting adults and personal money.  SDNY Judge Rakoff granted the Times’ motion to unseal the applications, concluding that the Times had a common law First Amendment right of access to judicial records that was coextensive with Title III’s good cause requirement for disclosure.  The government appealed, and Elliot Spitzer was permitted to file an amicus brief.  

Title III’s Good Cause Requirement

Under Title III, wiretap applications may only be disclosed “upon a showing of good cause.”  Neither the statute nor the Supreme Court have defined the term or who may invoke it, but in NBC v. DOJ, 735 F.2d 51 (2d Cir. 1984), a case where NBC sought wiretap applications to assist its defense in a libel action, the Court held that the applicant seeking to unseal wiretap applications must be an “aggrieved person.”  It reached this conclusion in part based on a statement in Title III’s legislative history, which gave as an example of “good cause” an aggrieved person’s right to suppress wiretap contents.  In Spitzer II, the Court saw no reason to depart from its analysis in the NBC case.  “It is irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance.  Like NBC, the Times does not suggest, much less show, that it is an ‘aggrieved person’ within the express terms of the statute – that is, like NBC, the Times does not claim to be a ‘party to any intercepted wire or oral communication or a person against whom the interception was directed.’”

First Amendment Right of Access

There is a qualified First Amendment right of access to judicial records in two situations.  One is the “history and logic” situation, where the records have been traditionally open to the press and public, and public access helps the functioning of the process in question.  The other is where the documents have been filed in connection with a judicial proceeding that can be publicly attended.  In Spitzer II, the Court concluded that neither situation applied here.  Wiretap applications have not been historically open to the press and public since their inception in Title III, and “the Times does not present a good reason why its preferred public policy (‘logic’) – monitoring the government’s use of wiretaps and potential prosecutions of public officials – is more compelling than Congress’s concern for confidentiality and privacy.”  As for the “attendance at proceedings” approach, the press and public are not allowed to attend the ex parte, in camera proceedings where wiretap applications are presented to a district judge, and therefore can have no corollory First Amendment right of access to the sealed applications.


This case sets a very high bar for media access to wiretap applications.  It’s hard not to imagine a more compelling reason for public disclosure of the submissions to a judge in support of surveillance than a now closed investigation that led to the resignation of a state governor.  While one can certainly empathize with Mr. Spitzer’s desire to put this humiliating episode behind him, media scrutiny is an important check on the exercise of prosecutorial power, especially the decisions to engage in the kind of highly intrusive surveillance at issue here.  But if access to wiretap applications is limited to “aggrieved persons,” it puts the fox in charge of the proverbial henhouse.  As the Court has acknowledged more than once, prosecutors’ bargaining power is “awesome.”   While there is no indication that their bargaining power was in any way abused in this case, prosecutors nonetheless can use this power, along with their charging discretion, to silence all the people “aggrieved” by wiretapping.

Lawyers: David McCraw and Itai Maytal of The New York Times Company; AUSAs Daniel Stein and Jesse Furman; James Brochin, Marc Falcone and Michelle Hirshman of Paul, Weiss, Rifkind, Wharton & Garrison LLP (Elliot Spitzer)
In United States v. Matos, 2009 WL 2883054 (E.D.N.Y. September 03, 2009), the government got a do-over, but not the result it sought.  After EDNY Judge Garaufis had suppressed drugs seized in a “dropsy” case, finding the testimony of the government’s witnesses “incredible,” “unfathomable” and “absurd” (see here), the government moved for reconsideration and was given permission to present the testimony of no less than six additional agents, as well as additional testimony from the two Judge Garaufis had already found incredible.  The lady clearly protesteth too much . . . In this second decision, parsing the testimony like a slow motion camera – not missing the slightest inconsistency (and there were many) – Judge Garaufis refused to alter his original conclusion, concluding:

The court remains unpersuaded by the Government’s theory that the evidence against Matos was obtained through a series of fantastic coincidences: that, at the precise moment that the team decided it was necessary to seek entry to the apartment, an individual exited the residence, tossed evidence of criminal contraband in the plain view of the officers, and then invited six armed officers into the apartment – all the while spontaneously volunteering incriminating statements and substantial quantities of narcotics to the officers. The court did not find this account to be credible at the May Hearing, and the testimony presented at the Supplemental Hearing has not changed the court’s view.
Lawyers: Guy Oksenhendler, Jay H. Schwitzman (defendant); AUSA James Donald Gatta

Behind the convictions of criminal defense lawyers Robert Simels and Arienne Irving yesterday on charges of witness tampering and obstruction of justice is a profound question: should there be different rules for the prosecution of lawyers?  The Simels prosecutors thought yes, and drafted a unique protocol for the minimization of communications intercepted under a Title III warrant.  EDNY Judge Gleeson disagreed.  In United States v. Simels, 2009 WL 1924746 (E.D.N.Y. July 2, 2009), he suppressed the fruits of the Title III surveillance because the protocol was internally inconsistent and improperly minimized dissemination rather than the initial interception.  In addition to being a detailed primer on Title III minimization issues, especially in the context of privileged communications, the decision joins its companion, discussed here, as another important landmark in the small body of jurisprudence on how (and how not) to prosecute a lawyer for an act of lawyering. 


As part of an investigation into allegations that defense attorneys Robert Simels and Arienne Irving were seeking to influence witnesses in the upcoming trial of their client Shaheed Kahn, the government obtained an order under Title III permitting it to intercept communications between Simels, Irving and Kahn, in the attorneys’ visiting rooms at MCC. 

Because the targets included two lawyers, the order contained two minimization provisions, both proposed by the government.  The first was a standard provision, requiring the monitoring agents “to minimize the interception of communications not otherwise subject to interception under [Title III], including . . . privileged communications.”  The second directed the agents to record (without listening to) all communications between Simels or Irving and their client, and provided for after-the-fact minimization by “Wall Agents” and a “Wall AUSA.”

Two meetings were recorded under the order, and only the second minimization directive was followed (in other words, the meetings were recorded in their entirety and not contemporaneously monitored).  Simels and Irving were later indicted on obstruction of justice and witness tampering charges, among others.  They moved to suppress the fruits of the wiretap surveillance because of a failure to minimize. 

Minimization Cannot Occur After the Horse Has Bolted

Granting the motion and suppressing the communications, Judge Gleeson found that the government’s minimization efforts here were unreasonable, and the post-interception minimization procedure violated Title III.  For one thing, the two minimization provisions in the order were internally inconsistent.  “By definition, an agent cannot minimize the interception of communications that should not be intercepted by intercepting all communications and sorting them out later.”  Moreover, while Title III permits post-interception minimization in two circumstances (where the communications are in code or in a foreign language), neither applied here.

[T]he way to avoid intercepting privileged or nonpertinent communications (as opposed to merely avoiding the unlawful dissemination of communications that should never have been intercepted in the first place) is take reasonable steps not to intercept them. Automatically recording everything, even where that is followed by a post-interception minimization protocol, virtually guaranteed the interception of communications the government should not have seized. The post-interception minimization may have closed the barn door, but the horse was already gone . . . When the government deliberately intercepts nonpertinent communications, it is no comfort to those whose privacy has been invaded that only government actors not involved in a particular criminal investigation will be listening to them.

Privileged Communications Are Not Special

The prosecutors had taken pains to avoid disseminating privileged communications, but Judge Gleeson debunked the idea that privileged communications should not be intercepted in wiretaps.  “Communications undoubtedly occur that are both pertinent to the crimes enumerated in an order issued pursuant to 18 U.S.C. § 2518 and privileged under some other body of law, and nothing in Title III prohibits the interception of such communications based on their privileged status.” 

Good Faith Not a Defense

Although the court found that the prosecutors’ good faith was “indisputable,” that was not relevant to the outcome.  Title III has its own statutory exclusionary rule, and Judge Gleeson found “no indication in the statute that good faith is relevant to the operation of this exclusionary rule.”


In developing their ill-fated protocol, the Simels prosecutors, to their credit, recognized the serious ramifications of bugging MCC’s attorney interview rooms.  But from a defense perspective, if you’re challenging the fruits of such interceptions on minimization grounds, the horse has already bolted.  What is far more interesting here is what led to the wiretap authorizations in the first place: several visits to Simels’ law office by a cooperating witness wearing a wire, who proceeded to discuss defense strategy in Khan’s case with Simels and Irving.  Judge Gleeson had denied Simels’ concededly “novel” motion to suppress these consensual recordings and their fruits on the grounds that the government’s use of a wired cooperator in these circumstances was unconstitutional.  But the motion begs the important question of whether there should be some formal rules requiring judicial supervision before wired cooperators are deployed into a law office.  Bad lawyers do not deserve special treatment, but aggressive advocacy does, and that kind of advocacy may be chilled by the kinds of highly intrusive surveillance and investigative techniques employed in this case.

See Archives for all posts since September 2007.