Plain View for Computer Searches Generates Two Circuit Splits in Two Days: United States v. Williams and United States v. Mann

Should courts adopt a new set of Fourth Amendment rules to regulate how the police can search computers for evidence? In particular, does the fact that so much electronic evidence outside the scope of a warrant can come into “plain view” during a computer search require a different approach to whether that evidence outside the scope of the warrant should be admitted?

Some courts have thought so. In the Tenth Circuit, for example, the usual objective test for admitting plain view evidence has been replaced by a subjective test designed to narrow the scope of plain view: Evidence outside the scope of a warrant is permitted in plain view only if the agent was subjectively looking for evidence within the scope of the warrant. And in the Ninth Circuit, the en banc court recently adopted a complex set of prophylactic rules to avoid admission of plain view evidence altogether in United States v. Comprehensive Drug Testing.

In the last two days, however, two circuits have handed down published decisions creating apparent circuit splits on both of these aspects of how the plain view exception applies to computer searches. Both of these circuits, the Fourth and the Seventh, reject the idea of adopting new rules for computer search and seizure.

1. United States v. Williams. The first decision is a Fourth Circuit opinion by Judge Niemeyer in United States v. Williams, expressly disagreeing with the Tenth Circuit’s plain view decision in United States v. Carey. Carey adopted a subjective test for the plain view exception to computer searches: Under that approach, the question is whether the agent who was searching through the computer was subjectively looking for evidence within the scope of the warrant. Judge Niemeyer disagreed:

Williams, relying on the Tenth Circuit’s opinion in United States v. Carey, advances an argument that the plain-view exception cannot apply to searches of computers and electronic media when the evidence indicates that it is the officer’s purpose from the outset to use the authority of the warrant to search for unauthorized evidence because the unauthorized evidence would not then be uncovered “inadvertently.”

This argument, however, cannot stand against the principle, well-established in Supreme Court jurisprudence, that the scope of a search conducted pursuant to a warrant is defined objectively by the terms of the warrant and the evidence sought, not by the subjective motivations of an officer.

While Williams relies accurately on Carey, which effectively imposes an “inadvertence” requirement, such a conclusion is inconsistent with Horton. Inadvertence focuses incorrectly on the subjective motivations of the officer in conducting the search and not on the objective determination of whether the search is authorized by the warrant or a valid exception to the warrant requirement

In this case, because the scope of the search authorized by the warrant included the authority to open and cursorily view each file, the observation of child pornography within several of these files did not involve an intrusion on Williams’ protected privacy interests beyond that already authorized by the warrant, regardless of the officer’s subjective motivations.

Judge Niemeyer concluded by emphasizing that computer search and seizure rules should be the same as traditional search and seizure rules:

At bottom, 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. . . . We have applied these rules successfully in the context of warrants authorizing the search and seizure of non-electronic files, see Crouch, 648 F.2d at 933-34, and we see no reason to depart from them in the context of electronic files.

2. United States v. Mann. Meanwhile, just yesterday, the Seventh Circuit handed down United States v. Mann, another plain view computer case that was authored by Judge Rovner. The Mann court seems to accept the Carey inadvertence standard for plain view (or arguably takes a third approach, that the test is whether the agent knew or should have known that the file opened was outside the scope of the warrant).

But in the court then goes on to reject the Ninth Circuit’s Comprehensive Drug Testing decision:

Although the Ninth Circuit’s rules provide some guidance in a murky area, we are inclined to find more common ground with the dissent’s position that jettisoning the plain view doctrine entirely in digital evidence cases is an “efficient but overbroad approach.” Id. at 1013 (Callahan, J., concurring in part and dissenting in part). As the dissent recognizes, there is nothing in the Supreme Court’s case law (or the Ninth Circuit’s for that matter) counseling the complete abandonment of the plain view doctrine in digital evidence cases. Id. We too believe the more considered approach “would be to allow the countours of the plain view doctrine to develop incrementally through the normal course of factbased case adjudication.” Id. We are also skeptical of a rule requiring officers to always obtain pre-approval from a magistrate judge to use the electronic tools necessary to conduct searches tailored to uncovering evidence that is responsive to a properly circumscribed warrant. Instead, we simply counsel officers and others involved in searches of digital media to exercise caution to ensure that warrants describe with particularity the things to be seized and that searches are narrowly tailored to uncover only those things described.

Two circuit splits on computer search and seizure in two days — not bad. I’ll probably offer some commentary on these decisions over the next few days, but for now I just wanted to note the new decisions. Thanks to Doug Berman for bringing them to my attention.