970 F. Supp. 2d 204
S.D.N.Y.2013Background
- The United States filed an in rem forfeiture action on Dec. 17, 2008; a Protective Order that required preservation and inspection of all books and records related to the property was entered the same day.
- On Dec. 18–19, 2008, FBI agents, acting pursuant to a grand jury subpoena and then a criminal search warrant, seized documents from the Alavi Foundation and 650 Fifth Ave. Co. in a criminal investigation.
- Counsel for Alavi acknowledged the preservation/production obligations in Jan. 2009 and relied on the seized materials to satisfy civil discovery obligations.
- Between 2011–2012, Alavi produced the same documents to the Government and multiple private judgment-creditor plaintiffs in consolidated civil actions without objecting to their provenance; the documents have been used by judgment creditors in the litigation.
- Alavi moved (on eve of trial) to suppress documents seized by the FBI, arguing Fourth Amendment violations (probable cause, particularity, scope) and asserting the Government could not show inevitable discovery.
- The Court denied suppression, holding the preexisting civil preservation/production obligations and the voluntary civil production rendered Fourth Amendment suppression analysis unnecessary; alternatively, inevitable discovery would apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether seized documents must be suppressed in the civil forfeiture action due to an allegedly defective criminal search warrant | The Dec. 2008 warrant lacked probable cause/particularity and exceeded its scope; thus documents seized must be suppressed in the forfeiture action | Preexisting civil preservation and Protective Order obligations (and subsequent voluntary civil production) mean the Government was entitled to the documents independent of the search; suppression is unnecessary | Denied — no suppression; civil discovery obligations and voluntary productions render Fourth Amendment analysis unnecessary |
| Whether Alavi’s prior voluntary productions waived or foreclose a suppression remedy | Alavi contends the seized materials taint the Government’s amended complaint and civil use | Government and judgment creditors point to counsel’s Jan. 2009 letter and later reproductions showing Alavi’s reliance on seizure to meet civil obligations | Held that Alavi’s conduct — failing to object and reproducing documents in civil discovery — undermines suppression claim |
| Whether the inevitable discovery doctrine would permit admission if the search were defective | Alavi argued the Government must prove inevitable discovery and that a hearing is required under Eng | Government relied on uncontested historical facts: preexisting civil actions, preservation duties, and actual civil production to show inevitable discovery | Court agreed inevitable discovery would apply; no contested factual dispute requiring hearing |
| Whether suppression is appropriate to deter police misconduct here | Alavi urged suppression as deterrence for unlawful investigative practices | Government argued exclusionary rule should not apply where documents were subject to civil production and used by private litigants | Court held exclusionary rule not warranted given civil discovery context and lack of prejudice; suppression would not serve remedial aims |
Key Cases Cited
- Kronisch v. United States, 150 F.3d 112 (2d Cir. 1998) (duty to preserve evidence arises when litigation is filed or is reasonably anticipated)
- Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (scope and timing of document preservation obligations in civil litigation)
- Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001) (duty to preserve extends to period when litigation is reasonably anticipated)
- United States v. Heath, 455 F.3d 52 (2d Cir. 2006) (articulating inevitable discovery standard)
- United States v. Eng, 997 F.2d 987 (2d Cir. 1993) (explaining proof required for inevitable discovery; construing Eng I)
- United States v. Eng, 971 F.2d 854 (2d Cir. 1992) (discussing limitations on relying on subpoenas to show inevitable discovery)
- United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to exclusionary rule)
- United States v. Calandra, 414 U.S. 338 (1974) (purposes and limits of the exclusionary rule)