BLOG BULLETS

• Onsite computer searches aren’t necessarily as difficult as experts claim.
• Onsite computer searches are getting easier and some day in the not too distant future may be the norm.
• Some search warrants even now require at least a good faith effort to conduct an initial search onsite.

NOW THE BLOG:

In my last post (“The Brave New Fourth Amendment World of Computer Searches,” linked in the “Recent Posts” column at the right), I introduced the subject of computer searches and talked about my Hill case. I noted that there were two issues in that case on which the opinion recognized it might be “of limited longevity,” but I only got to one of them in that post. This post focuses on the second issue.

That’s the question of whether onsite searches should be required. Seizing all computers and computer media, which is what was done in Hill, stands in stark contrast to what would be required in a search for documents or other evidence, which would be that the officer look in the various file cabinets, file folders, and boxes on the premises and take only those documents or other items that were covered by the warrant, see United States v. Tamura, 694 F.3d 591 (9th Cir. 1982), cited and discussed in United States v. Comprehensive Drug Testing, 621 F.3d 1162, 1167-69 (9th Cir. 2010). Hill considered the question of whether the technological difficulty of computer searches meant that computers and computer media could be seized in toto without such an initial onsite examination and then created an exception for computer searches, subject to an affidavit explaining why an onsite search wasn’t feasible. The court held such an explanation was required both based on general Fourth Amendment principles that the affidavit must justify the seizure or search in question and because “[t]here may well be situations where the government has no basis for believing that a computer search would involve the kind of technological problems that would make an immediate onsite search and selective removal of relevant evidence impracticable.” Id. at 975.

The court thereby left an opening for the argument that an onsite search was possible in a given case. And query whether such situations may become more the rule than the exception as search technology develops. Even before the Hill opinion, the Federal Public Defender office in Oregon made this argument, by presenting expert testimony that onsite searches were possible and arguing that the contrary representation in a search warrant affidavit was a misrepresentation that violated Franks v. Delaware, 438 U.S. 154 (1978). See United States v. Greathouse, 297 F. Supp. 2d 1264, 1275 (D. Ore. 2003). While the court rejected the Federal Public Defender argument in Greathouse, it offered a caveat very similar to that offered by the Hill court, “recogniz[ing] that this may not always be the case due to technological developments.” Id.

Perhaps in response to this sort of concern, federal search warrants in the Central District of California began at some point to include language like the following:

In searching for data capable of being read, stored or interpreted by a computer, law enforcement personnel executing the search warrant will employ the following procedure:i. Upon securing the premises, law enforcement personnel trained in searching and seizing computer data (the “computer personnel”) will make an initial review of any computer equipment and storage devices (collectively the “computer devices”) to determine whether the computer devices can be searched on-site in a reasonable amount of time and without jeopardizing the ability to preserve data contained on the computer devices.ii. If the computer devices can be searched on-site in a reasonable amount of time and without jeopardizing the ability to preserve data, they will be searched on-site, and a computer device will be seized only if the search reveals it to contain any data that falls within the list of items to be seized set forth herein.iii. If the computer devices cannot be searched on-site in a reasonable amount of time and without jeopardizing the ability to preserve data, then the computer devices will be seized and transported to an appropriate law enforcement laboratory for review.This language became the subject of an appeal that I handled – decided in an unpublished opinion at 405 Fed. Appx. 196 (9th Cir. 2010) – when the forensic computer examiner who had been taken on the search pursuant to such a provision admitted that he “fully intended to do an on-site preview” under this provision, that such on-site searches are “[o]ften times . . . successful,” that there are several steps in such an on-site search that together would have taken just between two and three and a half hours, and that the only reason he didn’t make such an attempt in my case was that he didn’t want to drive back to his office 15 minutes away to get another piece of equipment. (There you see my issue.) So the government and/or at least one of its experts appear to agree that an on-site search may be possible in some circumstances.

Provisions like the search warrant provision quoted above may not be required, but magistrates certainly have the discretion to include them as requirements in a warrant. See Comprehensive Drug Testing, 621 F.3d at 1179 (Kozinski, J., concurring) (referencing “the discretion of the issuing judicial officer” and proposing other requirements to consider including in computer search warrants); United States v. Payton, 573 F.3d 859, 864 (9th Cir. 2009) (noting that warrants “often include a limiting search protocol,” that judges “may place conditions,” and that it is “important to preserve the option of imposing certain conditions”). See also In the Matter of the United States of America’s Application for a Search Warrant to Seize and Search Electronic Devices from Edward Cunnius, 770 F. Supp. 2d 1138, 1146-52 (W.D. Wash. 2011) (citing both Payton andComprehensive Drug Testing and denying application for warrant that did not incorporate protections suggested by Judge Kozinski). And such requirements presumably need to be complied with if they are included.

Several things come out of the discussion in this post and the last one. First, look for what the warrant requires and whether the officers really did what they were required to do. Second, think twice about boilerplate assertions in affidavits and whether technology may make things that once were true no longer so true. Third, think about and inquire into how the officers actually did the search and the ideas of Judge Kozinski and others about how computer searches should be limited in this brave new world where our whole lives are on one little piece of metal they call a hard drive. Finally, think about other ways in which computer searches raise new issues that we should think long, hard, and creatively about. More on some of those ideas in my next post.