The Fourth Amendment protects the home as well as its curtilage, which is defined as the area immediately surrounding the home and associated with it. Recently, the North Carolina Supreme Court in State v. Grice, 2015 WL 304075 (Jan. 23, 2015), was confronted with a Fourth Amendment issue involving the curtilage. The court held, reversing the court of appeals, ___ N.C. App. ___, 733 S.E.2d 354 (2012), that officers who were validly on the curtilage of a residence to conduct a knock and talk did not violate the Fourth Amendment when they saw marijuana plants 15 yards away on the curtilage and warrantlessly seized them. Continue reading
Tag Archives: plain view
Whether the plain view doctrine makes sense in the context of computer searches, and if it doesn’t, what courts should do about it, are controversial issues. We don’t have any North Carolina case law on point but decisions are piling up around the country. This post summarizes the controversy.
Computer searches may be very thorough. Generally, courts have held that when an officer is entitled to search a computer for evidence of a crime, the officer may review every file on the computer. This is because of the ease with which files can be camouflaged or disguised through misleading file names or extensions. See, e.g., United States v. Stabile, 633 F.3d 219 (3rd Cir. 2011) (searching video files pursuant to search warrant for financial crimes was “objectively reasonable because criminals can easily alter file names and file extensions to conceal contraband,” and “the plain view doctrine applies to seizures of evidence during searches of computer files, [though] the exact confines of the doctrine will vary from case to case in a common-sense, fact-intensive manner”); United States v. Williams, 592 F.3d 511 (4th Cir. 2010) (stating that a computer search requires “at least a cursory review of each file on the computer”).
Broad computer searches may bring evidence of other crimes into view. Because of the broad scope of computer searches, they require officers to sift through large amounts of information unrelated to the crime under investigation. As a result, officers executing computer search warrants often encounter evidence of crimes other than those based on which the warrants were issued. Commentators have suggested for years that computer searches are different in degree, and perhaps in kind, from other types of searches in this regard. See, e.g., Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L.Rev. 531 (2005) (stating that “computer technologies may allow warrants that are particular on their face to become general warrants in practice”); Paul Ohm, Massive Hard Drives, General Warrants, and the Power of Magistrate Judges, 97 Va. L.Rev. In Brief 1 (2011) (“Computer search warrants are the closest things to general warrants we have confronted in the history of the Republic.”).
Some courts apply the plain view doctrine. When an officer searches a physical location pursuant to a search warrant and stumbles upon evidence of a crime other than the one that motivated the search, the evidence is said to be in “plain view,” and it may be seized by the officer and used to support a criminal prosecution. Many courts have simply applied the plain view doctrine to computer searches. For example, imagine that an officer is searching a computer under a warrant for evidence related to a homicide, but encounters files containing child pornography. These courts would rule that the plain view doctrine applies to the discovery of the child pornography, and that the officer may continue searching the computer under the original warrant, even though the officer may now subjectively expect to find additional child pornography. See, e.g., United States v. Williams, 592 F.3d 511 (4th Cir. 2010) (the defendant sent anonymous emails to a church expressing a sexual interest in some boys who attended school at the church; police obtained a search warrant for “computer systems and digital storage media” indicative of computer harassment or communicating threats; during search, police found child pornography; the court found no Fourth Amendment violation, in part because a computer search requires “at least a cursory review of each file on the computer,” bringing the child pornography into plain view); United States v. Mann, 592 F.3d 779 (7th Cir. 2010) (officer obtained search warrant to search the defendant’s computer for evidence of voyeurism; he properly searched the image files on the computer systematically, even though he thereby uncovered child pornography; however, the court found it “troubling” that the officer did not stop and seek a second warrant for child pornography).
Other courts seek to limit plain view as it applies to computer searches. Other courts have concluded that because computer searches bring so much information to officers’ attention, the plain view doctrine must be limited. These cases generally have arisen in the context of searches pursuant to search warrants, and courts have expressed a concern that computer search warrants may amount to general warrants that allow officers to rummage through a suspect’s computer for evidence of any wrongdoing.
The cases reflect two main strategies for limiting the effect of the plain view doctrine. One is to require, as a condition of issuing the warrant, that the prosecution forswear reliance on the plain view doctrine. The second is to order that the warrant be executed by a search team behind a “firewall” and that the search team report out to investigators only evidence related to the crime in connection with which the warrant was obtained. See, e.g., In re Search Warrant, 71 A.3d 1158 (Vt. 2012) (holding that a judicial official who issued a computer search warrant lacked the authority to prohibit law enforcement from relying on the plain view doctrine, but had the authority to accomplish the same result by requiring that the search be conducted by third parties behind a “firewall,” and that the search team provide to investigators only information relevant to the offense that gave rise to the search warrant); United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc) (noting that “over-seizing is an inherent part of the electronic search process” and suggesting that magistrate judges issuing search warrants should take steps to limit the government’s access to data for which it has no probable cause, such as requiring an on-site assessment of the feasibility of seizing only responsive data; requiring data segregation to be done by someone other than the case agent; and perhaps limiting the government’s plain view rights; Chief Judge Kozinski’s concurrence provides more detailed suggestions); In re United States’s Application For A Search Warrant To Seize and Search Electronic Devices From Edward Cunnius, 770 F.Supp.2d 1138 (W.D. Wash. 2011) (“Because the government, in this application, refuses to conduct its search of the digital devices utilizing a filter team and foreswearing reliance on the plain view doctrine, the Court denies the application as seeking an overbroad or general warrant in violation of the Fourth Amendment”). I would be interested to learn whether any judicial officials in North Carolina have imposed any such requirements on computer search warrants, and if so, how those requirements played out in practice.
Seeking a second warrant. Finally, a few courts have attempted to chart a middle ground, holding that the plain view doctrine applies to the initial discovery of unexpected evidence, but that if the officer wishes to continue looking for additional evidence in the same vein, a second warrant is required. See, e.g., United States v. Carey, 172 F.3d 1268 (10th Cir. 1999) (officer obtained search warrant for “evidence pertaining to the sale and distribution of controlled substances”; officer opened .jpg file with sexually suggestive name, apparently because the file could contain a photograph related to drug activity; it contained child pornography; officer continued viewing other .jpg files with sexually suggestive names, finding more child pornography; although the first image was in plain view, by “the officer’s own admission . . . each time he opened a subsequent [image] file, he expected to find child pornography and not material related to drugs,” so the plain view doctrine did not apply). But see United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005) (noting that “we have not required a specific prior authorization along the lines suggested in Carey in every computer search”). The courts’ focus on the subjective intentions and expectations of the officer is inconsistent with the Supreme Court’s repeated emphasis on the objective nature of Fourth Amendment analysis, so this middle ground may be a sinking island. Nonetheless, because North Carolina’s appellate courts have yet to rule on the application of the plain view doctrine as it relates to computer searches, a cautious officer may wish to seek a second warrant whenever the focus of his or her search moves away from the crime that gave rise to the warrant.
Category: Uncategorized | Tags: computer searches, digital evidence, fourth amendment, plain view, Search and Seizure
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.
Computers and electronic storage media can hold massive quantities of data. At approximately 30,000 pages per gigabyte, a low-end laptop computer with a 250 gigabyte hard drive can store the equivalent of more than 7 million pages of paper. That’s thousands of bankers’ boxes worth, or as many pages as you’d find at a branch library with 30,000 books.
When a law enforcement officer searches a computer, whether under a search warrant or a warrant exception, the officer typically searches the entire computer. At one level, this makes perfect sense, because although the officer may be looking for, say, evidence of tax evasion, the officer can’t trust file names and file extensions: critical evidence of unreported income won’t necessarily be saved under the name “secrettransaction.doc.” It might be instead be stored under the name “cookierecipe.doc” or “familyphoto.jpg.”
At another level, though, this means that computer searches can be incredibly extensive, in a way that arguably runs afoul of the Fourth Amendment’s particularity requirement, or at least risks rendering the Fourth Amendment impotent when it comes to protecting privacy. This is especially so because, when the officer finds child pornography on the computer — in addition to or instead of evidence of tax evasion — the prosecution is likely to argue that the images were in “plain view” and therefore admissible.
As Chief Judge Alex Kozinski of the Ninth Circuit put it recently, “[t]he pressing need of law enforcement for broad authorization to examine electronic records . . . creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.” United States v. Comprehensive Drug Testing, Inc., __ F.3d __, 2009 WL 2605378 (9th Cir. Aug. 26, 2009) (en banc).
Courts don’t agree on how serious this problem is. Some see it as a critical concern, others believe that computer searches are not dramatically more extensive or intrusive than, for example, a search of the paper records maintained by a large business. Further, courts and commentators who belive that this is a serious issue don’t agree on how to address it. Some suggest limiting the plain view doctrine in the context of computer searches; others suggest requiring officers to use a computer search protocol designed to find only evidence of the type for which the search is authorized. The most detailed treatment of the issue is in Comprehensive Drug Testing, a BNA summary and analysis of which is available here. The nutshell version is that the Ninth Circuit now requires (1) the government to waive the plain view doctrine as a condition of obtaining a computer search warranty, (2) the government to use a “search protocol . . . designed to uncover only the information for which it has probable cause,” and (3) the government to conduct computer searches using “specialized personnel or an independent third party,” not the case agents.)
Before you say, oh, that’s just the nutty Ninth Circuit, remember that Chief Judge Kozinski is a Reagan appointee and one of the most influential conservatives on the federal bench. Still, the opinion puts the Ninth Circuit alone in uncharted territory — whether it is leading the way or simply getting lost remains to be seen. North Carolina’s appellate courts haven’t weighed in on this issue yet, but I’d appreciate it if readers would weigh in — for example, by posting comments.
Category: Search and Seizure, Uncategorized | Tags: computers, fourth amendment, plain view, Search and Seizure, search warrants
