When a law enforcement officer is entitled to search a computer for evidence, she typically is entitled to look at every file on the computer, at least briefly. That’s because files that contain evidence of a crime may not be named drugtransactions.doc, but instead may be labeled airconditioningrepairbill.pdf, or something equally misleading and innocuous. Because computers can contain so much information, such a search can be very extensive.
Courts are struggling to decide whether that makes computer searches so different from traditional physical searches that new rules are needed. One area of disagreement is whether evidence that an officer stumbles across during such a search — for example, child pornography that the officer finds while searching for evidence of tax evasion — should be admissible under the “plain view” exception to the Fourth Amendment’s warrant requirement. In traditional physical searches, the answer is yes, but some courts have limited the applicability of the plain view doctrine in computer search cases as a way of preventing computer searches from becoming de facto general searches for evidence of any crime. I discussed this general issue, and one court’s resolution of it, in this prior post. Because the expected announcement of the Apple tablet makes today a big day — or at least, an enormously hyped day — in the computer world, I thought it timely to do a short follow-up post in this area.
Oh, and also, the Fourth Circuit recently decided a major case on point. The case is United States v. Williams, in which officers who searched a suspect’s computer for evidence of harassing emails found a cache of child pornography. The defendant’s motion to suppress the pornography was denied, and the Fourth Circuit affirmed. In part, the court concluded that the pornography was in plain view as a result of the search regarding the harassing emails, and the court rejected the idea that special plain view rules are appropriate in computer cases. The ruling is arguably dicta, for reasons that aren’t worth elaborating, but it is a considered ruling clearly meant to provide guidance to lower federal courts.
The court noted that “a computer search must, by implication, authorize at least a cursory review of each file on the computer,” and found that “the criteria for applying the plain-view exception are readily satisfied” when an officer comes across evidence of additional crimes. Importantly, the court held that the officer’s discovery of the additional crimes need not be inadvertent. In other words, the officer can (subjectively) be looking for such evidence, as long as the officer’s actions (objectively) are authorized as part of the search for evidence of the original crime. This is contrary to the conclusion reached by the Tenth Circuit in United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). A leading commentator discusses the circuit split here. “At bottom,” said the court, “we conclude that the sheer amount of information contained on a computer does not distinguish the authorized search of the computer from an analogous search of a file cabinet containing a large number of documents,” a circumstance in which the traditional plain view rules have been held to apply. It’s a thoughtful opinion, and worth reading, but it certainly won’t be the last word in this debate.