DOJ-OGR-00002554.jpg

Case 1:20-cr-00330-AJN Document 140 Filed 02/04/21 Page 6 of 22 F.2d 291 (2d Cir. 1979), which required the government to give Maxwell notice and an opportunity to be heard on its request. And in bypassing Martindell and eviscerating the guarantee of confidentiality provided by the Protective Order, the government trampled on Maxwell’s Fifth Amendment privilege against self-incrimination, which she declined to invoke in reliance on the protections afforded her by Martindell and the Protective Order. This Court should (1) suppress all evidence the government obtained from [A and any other evidence derived therefrom; or (2) suppress the April and July 2016 depositions and all evidence derived therefrom; and (3) dismiss Counts Five and Six. ARGUMENT I. The government’s violation of the Fourth Amendment requires suppression. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. CoNnsT. amend. IV. The “Fourth Amendment provides protection against a grand jury subpoena 399 duces tecum too sweeping in its terms ‘to be regarded as reasonable.’” United States v. Dionisio, 410 US. 1, 11-12 (1973) (quoting Hale v. Henkel, 201 U.S. 43, 76 (1906), abrogated in part on other grounds by Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 68 (1964)). The government engages in a “search” for Fourth Amendment purposes when its conduct encroaches on an individual’s legitimate expectation of privacy. See Katz v. United States, 389 US. 347, 351 (1967) (‘[T]he Fourth Amendment protects people, not places.”). Absent an exception to the warrant requirement, a governmental search is unconstitutional unless the government conducts it under a warrant issued based on probable cause to believe a crime has been committed and that evidence of the crime is likely to be found in the place searched. DOJ-OGR-00002554