221 F. Supp. 3d 454
S.D.N.Y.2016Background
- FBI investigated Patrick Nayyar (starting July 2009) for offers to sell military-grade weapons and related support to Hizballah; recorded meetings and physical evidence supported charges. Nayyar was arrested Sept. 24, 2009.
- FBI seized two laptops from the apartment; Nayyar’s wife signed a written consent form and gave a password but later told agents the password she gave was outdated because Nayyar had changed it after she found pornography.
- FBI CART created a forensic image (password not required) and agents reviewed the image in December 2009; Agent Kelley paused review after encountering images he suspected were child pornography and consulted a prosecutor.
- Prosecutor advised halting the review and obtaining a warrant to cure any potential consent defect; a magistrate issued a warrant in late 2010 and FBI resumed forensic work. The FTK report and Jencks materials (showing December 2009 activity) were produced to defense pretrial.
- Nayyar did not move to suppress before trial. At trial (March 2012) Agent Hunter testified she had begun examination in December 2009; defense moved for mistrial/suppression then. Court denied mistrial, finding waiver and invoking the independent‑source doctrine. Conviction and sentence followed; Second Circuit remanded for post‑trial hearing limited to waiver, validity of wife’s consent, and independent‑source application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of suppression claim | Nayyar: he had "good cause" not to move earlier because he did not know pretrial that searches occurred in Dec. 2009 | Government: discovery (consent form, FTK report, Jencks materials) put Nayyar on notice; failure to move was untimely and waived | Court: Waiver — documents provided pretrial gave adequate notice; suppression motion untimely and waived |
| Validity of third‑party consent | Nayyar: wife lacked authority to consent (she had been locked out; password outdated) | Government: wife had apparent authority (lived there, signed form, gave password) | Court: No actual authority; apparent authority not reasonable here because agents should have inquired further given ambiguity — consent invalid |
| Independent‑source doctrine | Nayyar: decision to seek warrant was prompted by Agent Kelley’s initial review (possible child pornography), so later warrant was tainted | Government: warrant was sought to "cure" consent concerns and to pursue already existing investigation; warrant application did not rely on prior review | Court: Independent‑source applies — warrant was prompted by investigation and prosecutor’s concerns about consent, not by exploitation of the earlier review |
| Admission of computer evidence at trial | Nayyar: evidence derived from unlawful search should be suppressed | Government: even if initial search problematic, independent source and waiver justify admission | Court: Evidence admissible — waiver and independent‑source doctrine defeat suppression request; mistrial denied |
Key Cases Cited
- Matlock v. United States, 415 U.S. 164 (1974) (third‑party consent to search and scope of common authority)
- Illinois v. Rodriguez, 497 U.S. 177 (1990) (apparent authority standard for third‑party consent)
- Murray v. United States, 487 U.S. 533 (1988) (independent‑source doctrine and confirmatory‑search concern)
- Nix v. Williams, 467 U.S. 431 (1984) (balancing exclusionary rule and independent sources)
- Segura v. United States, 468 U.S. 796 (1984) (warrant validity when prior illegal entry occurred)
- United States v. Johnson, 994 F.2d 980 (2d Cir. 1993) (application of independent‑source test in this circuit)
- United States v. Klump, 536 F.3d 113 (2d Cir. 2008) (untimely suppression motions and waiver rule)