BLOG BULLETS:

 

• Does and/or should a search warrant for premises based on probable cause to think one occupant or resident is involved in criminal activity allow the search of an uninvolved occupant’s or resident’s computer?
• More generally, think about how ordinary search principles extend to computer searches, and use them if they suggest limits in your case.
• If ordinary search principles don’t help, remember case law recognizing the special intrusiveness of computer searches and use that to limit the extension of ordinary search principles.

 

NOW THE BLOG:

In last week’s post, I talked about a recent favorable case on computer searches – United States v. Schlingloff, No. 11-40073, 2012 WL 5378148, 2012 U.S. Dist. Lexis 157272 (C.D. Ill. Oct. 24, 2012). The issues litigated in that case – or at least the issues addressed in the district court opinion – focused on the technology of computer searches – in particular, the need for appropriate search protocols in conducting computer searches. But the case also suggested to me a couple of non-technological and potentially interesting issues that aren’t addressed in the opinion. They arise out of the fact that the defendant in that case who had the child pornography on the computer – and I assume owned it – appears not to have been the target of the passport fraud and alien harboring investigation that the search warrant was aimed at. Rather, he was a different person who just happened to live at the same residence.

Query whether this raises an issue of whether the computer, as another person’s property, was within – or should have been within – the scope of this warrant. As to whether it was within the scope of the warrant, did the warrant allow a search of any and all containers and computers within the residence, or only those known to be under the control of the person or persons involved in the criminal activity being investigated? Or did the warrant at least exclude those containers and computers affirmatively known not to be under the control of those people? The law in this area is mixed and may only protect property of non-suspects who are mere visitors rather than non-suspects who are residents, compare United States v. Robertson, 833 F.2d 777, 783-84 (9th Cir. 1987) (warrant did not apply to backpack being carried by visitor who was leaving house as officers arrived to execute warrant) with United States v. Williams, 687 F.2d 290, 293 (9th Cir. 1982) (warrant did apply to lunch box sitting on floor of house) and United States v. McLaughlin, 851 F.2d 283, 287 (9th Cir. 1988) (distinguishing “co-owners” from “guests” such as the bar customers in Ybarra v. Illinois, 444 U.S. 85 (1979) because “[c]o-owners have control over premises not available to patrons” and holding warrant allowed search of briefcase of co-owner of business even though he was not suspected of the criminal activity), though it may matter what the agents know or have reason to believe, see Kashiwabara v. United States, 1994 WL 198651, 26 F.3d 131 (9th Cir. May 19, 1994) (unpublished) (distinguishing Robertson and holding search of handbag and purse was proper under warrant when officers had “good reason to suspect” they belonged to target of investigation, even though it turned out they belonged to visitor).

And query further whether a warrant should be limited – and is overbroad if not limited – when officers know there are multiple residents and only one is involved in the criminal activity. (Query also whether there’s a difference between “co-owners” and co-residents and/or a difference between a business and a home under the McLaughlin case cited in the preceding paragraph.) The warrant ought to establish probable cause for everything it allows to be searched, and a warrant that establishes probable cause of only one resident’s involvement in criminal activity seemingly doesn’t justify the search of items – such as a personal computer – known to belong to another resident, at least where the offense is such that it could be committed by one resident without the knowledge and participation of the other residents, cf. United States v. Di Re, 332 U.S. 581 (1948) (fact that driver of car had just sold counterfeit gasoline ration coupons to informant did not establish probable cause to arrest car passenger in addition to driver).

Another example of how and whether ordinary search rules ought to be applied in computer search cases – though in the consent context – was presented in the Stanley case that was the subject of my August 7, 2012 “Computer Searches Part 3” post referenced in last week’s post. Both that case and theSchingloff case illustrate how we shouldn’t forget ordinary search principles when thinking about computer searches, because they may help us. And where they don’t help us, remember what the Ninth Circuit said in United States v. Payton, 573 F.3d 859 (9th Cir. 2009) (also referenced in my August 7 post) about the importance of warrants in limiting computer searches and their scope:

[T]he nature of computers makes such searches so intrusive that affidavits seeking warrants for the search of computers often include a limiting search protocol, and judges issuing warrants may place conditions on the manner and extent of such searches, to protect privacy and other important constitutional interests. See, e.g., United States v. Adjani, 452 F.3d 1140, 1149 n.7 (9th Cir. 2006). We believe it is important to preserve the option of imposing such conditions when they are deemed warranted by judicial officers authorizing the search of computers. If unwarranted searches of computers are automatically authorized by upholding the search in Payton’s case, that option will be lost. Indeed, the special considerations of reasonableness involved in the search of computers are reflected by the practice, exemplified in [United States v.]Giberson[, 527 F.3d 882 (9th Cir. 2008)] of searching officers to stop and seek an explicit warrant when they encounter a computer that they have reason to believe should be searched.

Payton, 573 F.3d at 864.