The Volokh Conspiracy

As regular readers know, I have written at length about ex ante search restrictions on computer warrants. As I explained in a 2010 article in the Virginia Law Review, these restrictions are conditions of how a warrant is executed that some magistrate judges have begun to impose in cases involving searches of a computer. I have argued that such conditions are not only ultra vires but actually harmful because they impede the development of the law. Specifically, post-search litigation over the execution of the warrant turns into litigation over compliance with the ex ante search restrictions instead of compliance with the reasonableness requirement of the Fourth Amendment. As a result, courts do not have the opportunity to develop the Fourth Amendment law that applies to searching computers with a warrant. The result is an ironic cycle. The absence of Fourth Amendment precedents leads some magistrates to impose their own individual ideas to limit computer searches using ex ante restrictions, and the ex ante restrictions then impede the development of Fourth Amendment precedents.

A recent decision from the United States Court of Appeals for the Armed Forces, United States v. Cote (C.A.A.F. March 8, 2013), provides an interesting case study. In Cote, the government applied for a search warrant to search for and seize computers suspected of containing child pornography. The magistrate judge hand-wrote in the following restriction:

The search of any Electronic Device or Storage Media authorized by this warrant shall be completed within 90 days from the date of the warrant unless, for good cause demonstrated, such date is extended by an order of the Court.

Just by way of background, Federal Rule of Criminal Procedure 41 does impose a 14-day limit on when warrants must be executed. However, the rule is clear that this limit only applies to the initial search for the computer, not the later forensic analysis of it. See Rule 41(e)(2)(B) (“The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or onsite copying of the media or information, and not to any later off-site copying or review.”). In other words, the magistrate judge’s condition was not based on the Rule but rather the judge’s own view that the government ordinarily should search seized computers within 90 days.

Here’s where things get tricky. Unbeknownst to the magistrate judge, the computer hard drive that was seized turned out to be damaged and inoperable. The state forensic analyst tried to search it within the 90 day period but couldn’t get it to work. So he sent it to federal investigators, where it sat around for a long time. Thirteen months elapsed before federal forensic analysts repaired the hard drive and searched it — far outside the 90 day period.

When child pornography images were found and the government wanted to use them agains the defendant, the reviewing court then faced the critical question: On a motion to suppress the evidence, what is the relevant standard? Is the standard the reasonableness of the search under the Fourth Amendment based on the amount of delay and the justifications for the delay? Or is the standard compliance with the terms of the warrant? The government argued that the relevant standard was the Fourth Amendment and its reasonableness requirement, based on the sparse caselaw on how long a delay to search a seized computer is constitutionally reasonable. Under that caselaw, it it argued, the delay was a reasonable one under the circumstances because the computer had been damaged. In contrast, the defendant argued that the evidence should be suppressed because the terms of the warrant were violated. Because the computer had been searched after 90 days had elapsed, and no extension had been obtained, the evidence was inadmissible.

In a majority opinion by Judge Erdmann, the court concluded that the evidence had to be suppressed because the terms of the warrant were violated. According to the majority, the government presumptively had to follow any ex ante search restrictions handwritten into the warrant:

We believe that the limitation reflects a judicial determination that under the circumstances of this case, ninety days was a reasonable period of time in which to conduct the off-site search. This is particularly true since the term of “90” days was handwritten into the warrant, indicating that the duration of the limitation was tailored to the facts of this case, rather than simply being boilerplate language of the warrant. In addition, the judge established a procedure to extend the off site search period if the Government found they were unable to meet the ninety-day limitation.

While we do not believe that a violation of the ninety-day period mandates per se exclusion of the evidence, we do believe that the violation imposes an additional burden on the Government to show that the violation was either de minimis or otherwise reasonable under the circumstances.

At trial, the Government did not show any fact which would support the argument that its violation of the warrant’s terms was reasonable under the circumstances. Further, performing a search over a year after the expiration of the search period, without following already established procedures for requesting a new warrant or an extension of the existing warrant, is not a de minimis violation. As a result, we cannot conclude that the Government has met its burden at trial to show that the search comported with constitutional requirements.

Further, the good faith exception to the warrant requirement did not apply because the officers engaged in “deliberate or reckless” conduct by not complying with the magistrate’s hand-written restriction.

Judge Ryan dissented on the ground that the Court had failed to apply the Fourth Amendment: It had simply suppressed the evidence for failure to comply with the added restriction and had not bothered to engage in the reasonableness analysis that the Fourth Amendment requires. That reasonableness standard required the government to balance the delay in searching the computer against the government’s reason why it hadn’t done so in light of the government’s level of cause and the degree of certainty that the warrant contained child pornography. Accoridng to Judge Ryan, the majority had erred by using the 90-day limit as the guide instead of reasonableness-balancing required by Fourth Amendment precedents.

I think the majority was wrong and Judge Ryan was right. First, Judge Ryan is right that the court was not applying the Fourth Amendment, at least in any form I recognize. The relevant Supreme Court precedent is Richard v. Wisconsin, 520 U.S. 385 (1997), in which the magistrate crossed out by hand the part of the warrant application that had allowed the government to execute a warrant at a hotel room without first knocking and announcing their presence. When the police went to execute the warrant, they searched without first knocking and announcing. On review, the United Staes Supreme Court concluded that the magistrate’s ‘decision’ that the officers had to knock and announce was completely irrelevant under the Fourth Amendment. The relevant question was the reasonableness of not knocking and announcing, which was not a question that the magistrate had authority to answer:

In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the magistrate who signed the search warrant for his hotel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the hotel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the magistrate, to justify a no knock warrant. Of course, the magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards’ hotel room. [n.7] These actual circumstances–petitioner’s apparent recognition of the officers combined with the easily disposable nature of the drugs–justified the officers’ ultimate decision to enter without first announcing their presence and authority.

I see the magistrate’s hand-written 90-day limitation in Cote as analogous to the hand-crossed-out knock-and-announce limitation in Richards. In both cases, the magistrate cannot make a “ruling” about what Fourth Amendment reasonableness is going to require in some future that the magistrate does not know. Reasonableness must be judge ex post, at the time the events occurred, not ex ante, at the time the warrant is signed. As a result, the magistrate’s ex ante limitation is irrelevant to the reasonableness of the resulting search under Richards.

More broadly, the majority’s emphasis on compliance with the 90-day limitation meant that the Court did not rule on the underlying Fourth Amendment question of how to determine the reasonableness of the timing of an electronic search with a warrant when the computer to be searched is broken. That’s an important and interesting question, but the Court never addresses it. By substituting compliance with one ex ante restriction found in one particular warrant for compliance with the balancing test of Fourth Amendment reasonableness, the court ensured that it did not hand down a decision on reasonableness that would then be automatically incorporated into all future warrants as an appellate precedent.

Anyway, I realize that some readers will have an instinctive reaction that the government should do what judges say they should do and should be punished if they don’t do it — even if Supreme Court precedent indicates to the contrary. Further, I realize that the VC readers who tend to comment on these issues will celebrate the ruling because the government lost. But I think Cote is a good example of the kinds of harms to the development of the law that ex ante restrictions can cause.

I have blogged a few times about the significant Vermont Supreme Court case on ex ante search restrictions for computer warrants, In re Appeal of Application for Search Warrant. For prior posts, see here and here. Last week, Vermont filed a petition for certiorari in this case. I have posted a copy of the cert petition here.

As readers may recall, the Vermont case involves whether magistrate judges have the power to impose ex ante search restrictions on warrants. Some individual magistrate judges have begun to condition the issuance of warrants to search computer warrants on specific conditions on how the warrant is to be executed. The magistrate in the Vermont case followed the Ninth Circuit’s controversial decision in United States v. Comprehensive Drug Testing (“CDT“) and refused to issue the warrant unless the government agreed to a comprehensive set of conditions including that the government agree to waive plain view. In the Vermont Supreme Court case, the court struck down the condition of waiving plain view as improper but upheld the remaining CDT restrictions. However, the court rejected my view, articulated in my 2010 article Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010), that all such restrictions are improper and that the law of executing searches should be developed ex post by appellate courts rather than ex ante by each individual magistrate judge.

Here are some of my thoughts on the petition.

First, I agree with the state’s view that this is a hugely important question that is causing major confusion in the lower federal and state courts. Right now, each individual magistrate acts as as world unto himself when reviewing applications for computer warrants. Each individual state or federal magistrate picks and chooses whether to add search restrictions, and if so, what those restrictions are. Magistrates don’t know whether they have the power to impose these restrictions or what restrictions they should impose. Investigators aren’t sure if they can appeal denials of applications (at least in the federal system) or what the implications are of a failure to follow one of the restrictions. It’s a mess, and I strongly suspect that the Supreme Court will have to clear up the mess eventually.

With that said, the Vermont case is the first decision that squarely addresses whether magistrates have the power to impose ex ante search restrictions. There is disagreement among the circuits (and the concurring opinion in CDT) about the wisdom of such restrictions. The magistrates who issue such conditions think that they have the power to issue them, as cases such as this suggest. But my sense is that the Vermont case was the first state Supreme Court or federal appellate decision to answer squarely whether magistrates have the leal authority to add those restrictions.

With that said, this may be a rare opportunity for the Supreme Court to take such a case. The procedural posture of challenges that best raise the issue — challenges to denials of warrant applications — is rarely seen. To set up such a challenge in the federal system, for example, prosecutors have to have their request for a warrant denied, and then would have to appeal the denial; if the district court rejected the application, they would then have to appeal that denial, as well; and if they lost again, they would need to file their cert petition. Even assuming there is appellate jurisdiction to appeal such orders — dubious, in my view, except for mandamus jurisdiction — such ex ante litigation of a criminal case comes with a major practical problem. The problem is that taking the case on a multi-year trip through the appellate process means putting a criminal case on hold for several years while the statute of limitations is ticking and the rest of the evidence is growing stale. Putting a case on hold for so long would very likely jeopardize the case even if the appellate courts agree with the government. (And if any court agrees with the government along the way, there can be no appeals and therefore no Supreme Court review.) As a result, it will be the exceedingly rare case in which prosecutors are willing to put a case on hold for long enough to litigate the issue for a few years, just to get a ruling on the legality of ex ante search restrictions, that can lead to possible Supreme Court review. The Vermont case is a unique example of that happening. And even though there is no lower appellate court system in Vermont, it took a while to get there: just getting to a ruling from the Vermont Supreme Court took two years, during which the criminal case has been on hold.

Finally, who will file a Brief in Opposition in this case? It is an ex parte proceeding: The government is the only party. Before the Vermont Supreme Court, the Office of the Defender General acting as amicus curiae effectively played the role of opponent (see, for example, this brief). [UPDATE: I should have mentioned that EFF and the ACLU were also amici.] But justing looking quickly at the U.S. Supreme Court Rules, I don’t think they can file a Brief in Opposition; at most they can file an amicus brief opposing certiorari. That’s my guess, at least. I’m sure Stern & Gressman has something on this, but I’m not near my copy right now.

I have blogged often about the ex ante search restrictions on computer search warrants. In such cases, the government applies for a warrant to search a computer, and the magistrate judge concludes the warrant application satisfies the Fourth Amendment’s requirements of probable cause and particularity. Nonetheless, the judge is worried that the subsequent execution of the warrant may be too broad, so the judge devises a set of conditions for executing the search and then conditions the issuance of the warrant on complying with those conditions. In my view, judges lack the authority to impose such conditions, and those conditions are undesirable because they will impede the necessary development of Fourth Amendent law. I made that argument in an article published two years ago, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010). Until today, however, no appellate court had squarely addressed the question.

Today the Vermont Supreme Court finally issued a decision in its long-awaited pending case on the issue. I have uploaded the court’s decision here: In re Appeal of Application for Search Warrant. The court’s basic conclusion is that magistrates can “sometimes” add ex ante search restrictions to try to protect privacy, at their discretion, although not all restrictions are allowable. Further, restrictions are usually binding on the police, but not if the magistrate’s guess as to what would happen that was the basis of the condition later proves to be inaccurate. A significant part of the opinion responds to my article, so I hope readers won’t mind an unusually long post explaining the court’s reasoning and offering my brief commentary.

In this case, Vermont police applied for a warrant to enter a home and search the suspect’s computer for evidence of identity fraud. The judge agreed that the government established probable cause, and he signed the warrant. However, the judge imposed ten individually-numbered restrictions detailing how the police had to execute the warrant and what rights they retained going forward. Several but not all of the restrictions were taken from Judge Kozinski’s concurrence in a recent computer search and seizure case, United States v. Comprehensive Drug Testing. For example, the magistrate forbade the police from relying on the plain view exception to use any evidence outside the scope of the warrant that the police might found. The judge also ruled that the police could not use “sophisticated hashing tools” and “similar tools” to search the computer without first obtaining special permission from the magistrate judge. The police searched the home and seized the suspect’s computer, imaged it, and returned. But it has not searched the image. Instead, the state filed a motion for relief in the Vermont Supreme Court challenging the restrictions. The state’s goal is to have the state Supreme Court strike down the ex ante restrictions so the state can search the computer and leave the constitutionality of its search to ex post challenges.

In the decision handed down today, the Vermont Supreme Court reviewed the magistrate’s conditions for abuse of discretion rather than de novo, as required by Vermont state law that gave the state Supreme Court jurisdiction. Under that standard, the Court concluded that ex ante search restrictions are “sometimes acceptable” because they can be ways of ensuring that searches are executed in a narrow way.

The Court’s argument is based on two premises. First, in the court’s view, the warrant clause of the Fourth Amendment is not just about establishing probable cause and particularity. Rather, warrants are designed to minimize privacy invasions by making sure that “investigatory promise” of a search justifies the resulting “collateral exposure” in that particular case. The court seems to have in mind a kind of balancing scale that each magistrate must weight with each warrant application. The more invasive a warrant seems, the more the magistrate has the authority (although not the requirement) to devise and impose restrictions designed to ratchet back the overall invasiveness of the resulting search. As a result, ex ante restrictions are “sometimes” permitted as ways of regulating the process to try to protect privacy in light of the “interplay” between probable cause, particularity, and reasonableness.

The Court’s second premise is that particular procedures can substitute for particular descriptions under the Fourth Amendment. Instead of particularly describing what the police can seize, the warrant can describe how the police can search for items. Imposing specific procedures acts a functional substitute for a particular description of the thing to be seized: It ensures a narrow search by expressly regulating what the police can and can’t do. As a result, imposing search restrictions is a way of satisfying the requirement that warrants must “particularly describ[e] . . . the persons or things to be seized.”

The court then runs through the four kinds of restrictions imposed by the magistrate judge in this case. One of the conditions violated the magistrate’s discretion, the court concludes; the remaining restrictions did not.

1) The first restriction was requiring the government to forswear reliance on the plain view exception. The court rejects this condition as “unnecessary for privacy protection and inappropriate” for two reasons. First, the other restrictions in the warrant make it unlikely that this would be a problem: There won’t be any information outside of plain view, so there is no need to add this restriction. Second, a magistrate doesn’t have the authority to overturn U.S. Supreme Court precedent, so it’s improper to make the government give up reliance on that precedent.

2) The second set of restrictions was requiring the computer to be searched by non-investigative personnel who would then set up a “wall” and not give any evidence to the investigators that was not, in their view, related to the crime under investigation. The court allows this because it was an effort to try to restore particularity: “In lieu of a particular description of the files” that would ordinarily be requried under the Fourth Amendment, this provision allows a substitute of “a procedure for identifying the relevant files and exposing them only to police investigators.” Exposure of “embarrassing information to a detached third party constitutes a lesser injury” to privacy interest than does exposure to the police, so this procedure minimizes the invasiveness of a computer search and is therefore “not so wholly without basis as to constitute an abuse of discretion.” (Two Justices dissented on this part of the opinion: They argued that these search restrictions were a procedure designed to frustrate the plain view exception, and thus were not permitted for the same reason that it was impermissible to force the government to forswear reliance on the plain view exception.)

3) The third set of restrictions was a requirement of special search protocols and a ban on using “sophisticated hashing tools” and “similar tools” without special permission. This was permitted because it was a way to limit the scope of the search that could limit the privacy invasion. And if the government searches the computer and thinks that there may be more on the machine, the government can always apply for a second warrant to use “sophisticated” tools (which the magistrate might reject, but at least the government can apply).

4) The fourth set of restrictions required only responsive data to be copied, non-responsive data to be destroyed, and the search to be completed in a particular period of time. The court permitted these restrictions because they were similar to the kind of restrictions traditionally imposed by statutory rules governing warrants.

The Court also indicates that the search restrictions “generally” are binding on law enforcement when issued, although the government can try to argue that circumstances changed and that therefore the restrictions need not be followed. The opinion is especially murky on this issue: It relies on a single outlier district court case, the Burnette case from Maine, for the view that search restrictions are binding. But Burnette provided no analysis for this point, nor even any citation, in support of its view. And the Vermont court limits to its facts the contrary U.S. Supreme Court case, Richards v. Wisconsin, based on grounds not articulated in that opinion. The court also suggests that the fact that the restrictions are always optional and not always binding when issued means that there can still be ex post litigation to figure out what kind of search rules are constitutional as a matter of law. But I’m not sure how that works: How can the police know if circumstances changed? Changed from what? The magistrate who imposed the order doesn’t tell the police what circumstances she has in mind, so I don’t know how the police are supposed to know that they changed or the facts turned out to be different from what the magistrate was thinking.

Anyway, that’s the Vermont Supreme Court’s decision. It’s fascinating. As one might guess from reading the opinion, though, I also think it’s wrong. I certainly see the appeal of trying to regulate computer searches ex ante: There’s a hard problem there, and this is at least one kind of attempt at an answer. It’s certainly well meaning. With that said, the Vermont Supreme Court’s view of warrants is very similar to the Ninth Circuit’s view that the U.S. Supreme Court unanimously rejected in United States v. Grubbs, 547 U.S. 90 (2006). Unfortunately, the Vermont Supreme Court doesn’t even discuss Grubbs. It is mentioned only in passing in a footnote, after which the court says that it reads Grubbs and similar cases only to say that “hard and fast rules” on warrants are “frowned upon.” It’s not entirely clear to me what the Court is thinking with that description, although it may be that the Vermont court reads Grubbs as saying that appellate courts can’t require magistrates to take these special steps but that it leaves open that appellate courts also can’t stop them if they choose to at their discretion. From that perspective, magistrates regulate searches, not appellate courts: Appellate courts shouldn’t interfere with magistrates in their effort to apply the Fourth Amendment ex ante. I think that’s backwards. It’s up to appellate courts and the Supreme Court to say what the Fourth Amendment requires, not individual magistrates. More broadly, the right way to protect privacy in computer warrant cases is to eliminate the plain view exception and amend statutory rules governing computer warrants, not to give individual magistrate judges the discretion to impose (or not impose) their own preferred set of rules in each case.

With that said, I greatly appreciate the Vermont Supreme Court’s extensive analysis of the issues as well as its engagement with the relevant scholarship, including my own. This is just the first of many appellate decisions that courts will issue on this question, and I have long thought that the question was ultimately destined for the U.S. Supreme Court. Trying to figure out how to regulate computer searches is a really tough Fourth Amendment problem, and courts are destined to divide over it. With the Vermont decision, the game is on: Other courts can now weigh in and agree or disagree. As always, stay tuned.

In a recent article, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010), I wrote about the relatively new practice some magistrate judges have adopted of imposing ex ante restrictions on the scope of computer warrants that control how and when the computer is analyzed after it is retrieved from the place searched. Law.com has an interesting story about litigation in federal district court in San Franscisco about a dispute over one such restriction.

The story isn’t great on the details, but a quick look at one of the reported cases on Westlaw suggests that the feds obtained 27 warrants to search and seize a bunch of computers in this wide-ranging conspiracy case. After executing the warrants, the feds retrieved over 100 computers to search back at the government’s lab. Many but not all of the warrants contained the following restriction: “Within a reasonable period of time, but not to exceed 60 calendar days after completing the forensic review of the device or image, the government must use reasonable efforts to return, delete or destroy any data outside the scope of the warrant unless the government is otherwise permitted by law to retain the data.” In the current dispute, the defendants are arguing that the government has to return/destroy all non-pertinent data on the computers now based on the language of the warrant restriction. On the other hand, the government is arguing that it has a right to retain image copies of the hard drives so it can establish the involvement of each of the defendants and fend of claims that it tampered with the original data on the hard drive. The opinion by Magistrate Judge Paul Grewal concluded that after the government obtains a warrant for a computer it has no right to retain information stored in the computer that is not relevant to the case, and therefore that “the government must endeavor to give back to the defendants data outside the scope of the warrants” using “reasonable effort that minimizes the government’s exposure to non-targeted documents.” The government has now appealed to District Judge Lowell Jensen.

I haven’t taken a close look at all the documents in this case to know the details of what the parties are arguing, but my own view is that these sorts of ex ante limitations on warrants are not permissible in the first place. As a result, I don’t think the restrictions have legal force, and relying on them to determine the scope of the rights here therefore doesn’t make much sense. More broadly, there’s a lot of case law on Rule 41 motions for the return of property, and the general view of the precedents is that the government can retain the evidence pending trial if it has a plausible case for a need for it at trial. I suppose the issue here should be how to apply those general principles to computers: Do you see the relevant files on a hard drive as as distinct entities from the irrelevant files, and at what level of granularity? And how do you know which files are relevant, as the defense attorneys will be very tempted to say that the destroyed files ended up destroying exculpatory material– making files that seem irrelevant now appear very relevant later? Interesting issues. And ones made particular complicated in the Ninth Circuit thanks to the confusing Comprehensive Drug Testing precedent, so it will be interesting to see what the district court will do. Stay tuned.

As regular readers know, I’m very interested in the new practice some magistrate judges have adopted of conditioning computer warrants on ex ante restrictions that they themselves create and attempt to impose on law enforcement. A district judge recently decided a new case on the role of the restrictions that in my view demonstrates why such restrictions are troubling. The case is United States v. Salceda, decided on February 27 by Judge Snyder of the Central District of California.

First, a brief background on those who are unfamiliar with the practice. (If you want more details, read my recent article Ex Ante Regulation of Computer Search and Seizure.) Imagine the government wants to conduct a search, and they apply for a warrant. Traditionally, the role of magistrate judges has been to review the warrants applications for probable cause and particularity, as the text of the Fourth Amendment requires. If the warrant application establishes probable cause and satisfies the particularity requirement, the judge must issue the warrant. In the last few years, however, some magistrate judges have taken on a new role. These judges worry that computer searches are more invasive than traditional searches. They also don’t trust the process of litigating the constitutionality of computer warrant searches after-the-fact. As a result, they have begun conditioning the issuance of computer warrants on special conditions that they devise.

For example, a judge might say that he won’t allow the warrant unless the government agrees to not use any evidence discovered in plain view. Or the judge won’t allow the government to have the warrant unless the government agrees to search a computer a particular way. The basic idea is to use the magistrate judge’s power to issue or deny the warrant ex ante to try to regulate what happens later, with each magistrate judge free to impose whatever restrictions he or she wants (beyond probable cause and particularity) to try to ensure that the resulting search won’t be too broad. Most magistrate judges have not imposed these new restrictions, but a number have. The lawfulness of imposing such restrictions currently remains uncertain. The Vermont Supreme Court heard argument nine months ago on what likely will be the first appellate case to directly consider the lawfulness of the practice, but no decision has been handed down yet.

That brings us to the Salceda case. The police had probable cause to believe that Salceda had child pornography on his home computer. They asked for a warrant to enter Salceda’s home, seize his computer, and look for evidence. Magistrate Judge Parada agreed that the government had established probable cause and particularity, but then decided to impose conditions on the warrant. Specifically, Magistrate Judge Parada decided to impose a condition designed to deal with the fact that the police can’t know what is inside a computer when they execute the initial search at the suspect’s home, and therefore for practical reasons have to seize each computer they find and search it back at the lab to see if it has the evidence sought. Appellate precedent has allowed this initial seizure on grounds that such a practice is reasonable. But the magistrate judge imposed a condition that law enforcmeent had to conduct an initial search back at the lab within 60 days of seizing each device to determine if the device had evidence described in the warrant. The warrant then included the following instruction:

If, after conducting such an initial search [within 60 days from the date of the execution of the search warrant], the case agents determine that a digital device is an item to be seized or contains any data falling within the list of items to be seized pursuant to this warrant, the government will retain the digital device for further analysis; otherwise, the government will return the digital device.

In Salceda, the government seized the suspect’s computer, searched it in the initial 60 day period, and found lots of child pornography on it. The agents then put the computer aside. Almost two years later, as the case picked up again, the agents decided that they wanted to search the computer a second to find the rest of the child pornography on it. But at this point the agenta ran into a problem: Judge Parada’s warrant restriction wasn’t clear about whether they could do this. The warrant said that they could “retain the digital evidence for further analysis,” but it’s not clear if that meant that they could search the computer again or merely hold on to it or analyze files already searched.

The police applied for a second warrant to search the rest of the computer based on the evidence of the child pornography already discovered during the first search. As far as I can tell, the request for the second warrant was submitted to the duty judge, who happened to be a different judge. The second judge, Judge Zarefsky, told the investigators to go ask Judge Parada to clarify what the search restriction was intended to do instead of obtaining a second warrant, and denied the second warrant application.. The agents decided instead to search the computer again based on the first warrant, taking the view that the restriction allowed the agents to conduct “further analysis” such as searching the computer. The second search of the computer discovered more child pornography. The defendant then moved to suppress the extra child pornography discovered during the second search.

Held: The extra child pornography must be suppressed. Here’s the analysis:

The Court finds that any evidence discovered during the September and October 2011 forensic searches is inadmissible. The original warrant’s “further analysis” language is ambiguous as to whether it permits the government to analyze defendant’s digital devices for additional evidence of contraband, or whether it merely permits additional analysis of previously discovered contraband. Given this ambiguity, suppression of the evidence is appropriate. See Transfiguracion, 442 F.3d at 1228 (construing ambiguities in plea agreements in favor of a defendant because the government, as drafter of the agreement, bears the “responsibility for any lack of clarity”) (internal quotation marks and citation omitted); Wilhelm, 425 F.3d at 463 (finding fourth amendment violation because officer “recognized the warrant as ambiguous before the execution of the warrant, but failed to immediately stop execution and seek the necessary clarification of a warrant in order to make certain the warrant particularly described the place to be searched. . . .”). The Court’s decision is informed by the fact that the government sought–and was denied–a new warrant from Judge Zarefsky, and thereafter sought ex parte relief from this Court before conducting the subsequent searches. At the very least, the government’s conduct demonstrates its acknowledgment that the “further analysis” language is ambiguous. In denying the government’s ex parte application, the Court directed the government to seek clarification from the issuing judge to cure any ambiguities. Because the government chose to proceed with the searches without clarification or without securing a new search warrant, that evidence must be suppressed. See Wilhelm, 425 F.3d at 463.

Salceda is premised on the wrong analysis, I think. The Fourth Amendment requires reasonableness, and the Supreme Court and circuit courts have created a doctrinal structure for what reasonableness means and when unreasonable searches justify an exclusionary remedy. In my view, it is improper for magistrate judges and district court judges to simply ignore that binding appellate caselaw and replace it with an inquiry into whether agents properly followed a particular magistrate judge’s ex ante restrictions. In Salceda, the court seems to envision the warrant as some sort of contract between the government and the magistrate judge. She then asks if the agents lived up to their end of the deal, without ever considering any actual Fourth Amendment principles. But that’s just wrong, in my view. Warrants are not contracts, in which judges get to strike deals with investigators about what investigators can do. The Fourth Amendment requires reasonableness, and that allows investigators to do some things and not others. Reasonableness is up to the appellate caselaw, not individual magistrate judges with particular preferences.

The important Supreme Court precedent here is Richards v. Wisconsin, 520 U.S. 385 (1997). In Richards, a magistrate judge refused to allow agents to execute a warrant without first knocking and announcing their presence. The agents did so anyway. The defendant moved to suppress the evidence on the ground that the search was unlawful because it violated the magistrate’s express condition of granting it. The Supreme Court disagreed in a unanimous decision by Justice Stevens:

In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the magistrate who signed the search warrant for his hotel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the hotel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the magistrate, to justify a no knock warrant. Of course, the magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards’ hotel room. [n.7] These actual circumstances–petitioner’s apparent recognition of the officers combined with the easily disposable nature of the drugs–justified the officers’ ultimate decision to enter without first announcing their presence and authority.

In my view, that’s the right way to analyze Salceda, too. The issue should be whether the search was reasonable, and if not, whether the exclusionary rule should apply. The details of whether the agents did or did not follow the search restriction — and how that ambiguous search restriction should be interpreted — should be irrelevant because it is not relevant to the reasonableness of the search itself.

Maybe it’s just me, but that seemed kind of interesting: See pages 10-11 in this brief recently filed in the Vermont Supreme Court’s pending case on ex ante search warrant restrictions, which quotes from this post. I hope to have some substantive comments posted about the second round of briefing soon, but for now was just struck by the circularity of blogging about a brief that discusses blogging about a brief.

The comment thread to yesterday’s post on ex ante restrictions for computer warrants led to some interesting questions, and it also suggested that it might be helpful to explain the historical role of warrants, the particularity requirement, and magistrates, in order to understand how ex ante restrictions strongly depart from the historical norm. So here’s the historical context for readers who are trying to understand the issues.

The Fourth Amendment was enacted in response to a series of historical abuses involving warrants. Back in 18th Century England, the King’s officials were issuing warrants allowing government officials to break into any home and retrieve anything inside that was evidence of disloyalty to the King. These warrants were called “general warrants” because they did not limit where the police could search and what evidence they could look for and take away. The Fourth Amendment was designed to forbid general warrants: it states quite specifically that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In other words, the government had to say specifically where it was going to search, specifically what it was going to seize, and then explain why there was probable cause to believe that thing to be seized was in the place to be searched. The former part is the particularity requirement: The face of the warrant has to say with particularity where the police are going to search, and what they are looking for (and therefore plan to seize if they can find it).

The magistrates who review applications for warrants typically have not been legal scholars. Indeed, historically most were not even lawyers. Even today, there is no requirement that magistrates who issue warrants have any legal training or even serve as judges. The leading modern Supreme Court case is Shadwick v. City of Tampa, 407 U.S. 345 (1972), which expressly rejected the requirement that magistrates must be lawyers or even some sort of judge. In Shadwick, the Court concluded that a court clerk could issue warrants even though the clerk lacked legal training and was not a judge. As long as the clerk was not working for the investigators and was otherwise independent, the clerk satisfied the constitutional requirement and could perform the relatively basic functions of magistrates in checking warrant applications for probable cause and particularity.

Against this historical backdrop, the assertions that magistrates have the power to impose ex ante search restrictions on warrants strike me as rather astonishing. When imposed, such restrictions limit how the police execute the warrant after it is signed and what the rights of the police are going forward: What steps they can take, when they need to file reports, what evidence they can later use, and the like. As a result, the power to impose ex ante restrictions is the power first to look into the future of Fourth Amendment law and imagine what rules the Fourth Amendment might impose on the execution of computer searches, and then to impose a series of prophylactic rules on the police for all time forward as to what they can and cannot do in that case and with the evidence they find. Further, the idea is that each individual magistrate has the power to devise whatever restrictions he or she finds useful every time he or she signs a warrant. Every single warrant application is an entirely new opportunity to peer in to the future and craft a brand new set of prophylactic rules, limited only by the creativity of that magistrate judge and his or her latest personalized sense of what seems “reasonable.” I find this alleged assertion of power quite astonishing.

Defenders of the practice of ex ante search restrictions generally make two arguments. The first argument is that magistrates are often smart people who know how to protect privacy, so we should let them do that. There are three problems with this argument, I think. First, warrant applications are brief ex parte applications with no facts: Judges are smart, but they can’t apply the fact-specific Fourth Amendment in a vacuum. Second, while no doubt some magistrates are smart, some aren’t, and allowing ex ante restrictions doesn’t distinguish between the two: The proposed rule allows magistrates to impose any restrictions they like, no matter how silly they may be. Third, as I explain in my article, the absence of ex ante restrictions will prompt and facilitate ex post restrictions by appellate courts that will make ex ante restrictions unnecessary.

The second argument made by defenders of ex ante search restrictions is that ex ante restrictions are part of the particularity requirement. The thinking is that computer warrants can be incredibly broad because computers store so much information, making computer warrant searches look a lot like general warrant searches. The particularity requirement requires warrants to specifically state on the face of the warrant what the police will search for and seizure in order to narrow the scope of the warrant execution. Expressly limiting the powers of the police as they execute the warrant serves the same function, the thinking goes: Limiting how the police search avoids general searches just like limiting what the police can seize.

This argument is based on fundamental misunderstanding of the Fourth Amendment, I think. The prohibition on general warrants is not a prohibition on invasive searches. Rather, it it is a limitation of such searches to particular places for particular pieces of evidence. As the Court’s cases make clear, where the police can search and for what is an analytically distinct question from how they can search those places. While magistrates have to review warrants to make sure they particularly describe the where and for what based on probable cause, the legal questions of what kinds of ways of executing the warrant are constitutionally reasonable are legal questions for the appellate courts to decide, not individual magistrates (who may not be lawyers or judges) in each individual case.

The leading case here is United States v. Grubbs, 547 U.S. 90 (2006), a case involving anticipatory warrants. Anticipatory warrants are warrants that are triggered by some particular future event, such as the delivery of a package containing drugs. The Ninth Circuit had held that when the police obtain an anticipatory warrant, the warrant had to state the triggering event on its face. The Ninth Circuit reasoned that the particularity requirement applied to the triggering condition, as the condition was the event that permitted the issuance of the warrant. The Supreme Court unanimously reversed the Ninth Circuit with the following explanation:

The Fourth Amendment, however, does not set forth some general “particularity requirement.” It specifies only two matters that must be “particularly describ[ed]” in the warrant: “the place to be searched” and “the persons or things to be seized.” We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters. In Dalia v. United States, 441 U. S. 238 (1979), we considered an order authorizing the interception of oral communications by means of a “bug” installed by the police in the petitioner’s office. The petitioner argued that, if a covert entry is necessary to install such a listening device, the authorizing order must “explicitly set forth its approval of such entries before the fact.” Id., at 255. This argument fell before the ” ‘precise and clear’ ” words of the Fourth Amendment: “Nothing in the language of the Constitution or in this Court’s decisions interpreting that language suggests that, in addition to the [requirements set forth in the text], search warrants also must include a specification of the precise manner in which they are to be executed.” Id., at 255 (quoting Stanford v. Texas, 379 U. S. 476, 481 (1965)), 257. The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant.

I think this discussion refutes the argument that search restrictions are part of the particularity requirement.

I’ve blogged before about the fascinating and important issue of whether magistrate judges have the power to impose ex ante restrictions on how computer searches will be executed as a condition of issuing warrants to search computers. As regular readers know, my view is that they don’t: I explained why in my recent article, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010). Just this morning, the Vermont Supreme Court held oral argument in a case squarely addressing that question. I believe the Vermont case will be the first appellate decision to take on these important Fourth Amendment issues, so I thought I would blog a bit about it.

In this case, Vermont police applied for a warrant to enter a home and search the suspect’s computer for evidence of identity fraud. The judge agreed that the government established probable cause, and he signed the warrant. However, the judge imposed ten individually-numbered restrictions detailing how the police had to execute the warrant and what rights they retained going forward. Several but not all of the restrictions were taken from Judge Kozinski’s concurrence in a recent computer search and seizure case. For example, the magistrate forbade the police from relying on the plain view exception to use any evidence outside the scope of the warrant that the police might found. The judge also ruled that the police could not use “sophisticated hashing tools” and “similar tools” to search the computer without first obtaining special permission from the magistrate judge.

The police searched the home and seized the suspect’s computer, but did not search it. Instead, the state filed a motion for relief in the Vermont Supreme Court challenging the restrictions. The state’s goal is to have the state Supreme Court strike down the ex ante restrictions so the state can search the computer and leave the constitutionality of its search to ex post challenges. The state’s brief is here, and it argues that ex ante restrictions are constitutionally improper and pragmatically unwise. The Office of the Defender General filed an amicus brief, which you can read here, arguing that state law gives this power to magistrate judges and that such restrictions are proper under the Fourth Amendment. The Vermont chapter of the ACLU (joined by the EFF and other parts of the ACLU) also filed an amicus brief, which you can read here, which points out that many magistrate judges have in fact imposed such restrictions and also argues that the restrictions do not violate the Fourth Amendment in light of the special concerns of computer search and seizure.

My recent article contains my view of the legal questions here — or at least the federal legal questions — so I’ll just offer two quick comments on the pending case. First, some of the briefing by the amici argues that computers require special rules because of the invasiveness of computer searches. I basically agree with that, and have argued at length that the plain view exception should not apply to computer searches. But that’s a question of what reasonableness requires, not who should determine what reasonableness requires and when it should be determined. The question of whether magistrates have the power to devise and impose ex ante restrictions is about the latter question, not the former one.

Second, some of the briefing talks about my own scholarship in this area, and I wanted to make a brief comment about the ACLU’s reliance on Paul Ohm’s online response to my Virginia Law Review article on ex ante restrictions. In my view, the problem with Ohm’s response is that its reasoning conflicts with the Supreme Court’s decision in Grubbs. Grubbs rejected the idea that courts can impose ex ante restrictions on how warrants are executed because those restrictions further the same goals as probable cause and particularity — namely, trying to limit the scope of searches pursuant to warrants. I think Ohm’s position is based on the same reasoning that the Supreme Court rejected unanimously in Grubbs. In light of Grubbs, I think courts have to carefully distinguish particularity and probable cause from ex ante restrictions on how warrants are executed. The Fourth Amendment requires judges to condition warrants on the former, but it imposes no power on judges to refuse to issue warrants based on the latter.

In a recent article, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010), I pointed out a newly emerging practice of some federal magistrate judges in computer search cases. When the government applies for warrants to search for and seize computers, some judges are rejecting the applications — even when probable cause exists and the warrants are particular — unless the government agrees to follow certain restrictions, crafted by the magistrate judge, on how the electronic search stage will be conducted. That new practice received an enthusiastic endorsement when the Ninth Circuit handed down its initial en banc opinion in United States v. Comprehensive Drug Testing (CDT), which seemed to invite (if not require) magistrate judges to impose a series of fairly strict limitations on computer searches. The Ninth Circuit backed down in CDT, though, when the Court amended the opinion and moved those limitations from the controlling en banc opinion to the concurring opinion of Judge Kozinski. The Ninth Circuit’s backing down defused the problem in the short-run, but it ensured that the lawfulness of the ex ante restrictions — and which restrictions can be imposed and when, if any are permitted — would be fought at a later date.

It didn’t take long, it seems. Recently, Magistrate Judge James Donohue in Seattle unsealed an opinion he handed down on February 11 denying a warrant application to search the computers of a suspect, Edward Cunnius. I have posted the opinion here: In The Matter Of The United States Of America’s Application For A Search Warrant To Seize And Search Electronic Devices From Edward Cunnius. Judge Donohue agreed that the government had established probable cause to search Cunnius’s computers for evidence of his selling counterfeit Microsoft software on Craigslist. Although the opinion isn’t particularly clear on this, he doesn’t appear to argue that the warrant fails the particularity requirement. However, Judge Donohue denied the warrant application because the government refused to go along with two restrictions from Judge Kozinski’s concurrence in CDT. First, Judge Donohue wanted the government to promise it would not rely on the Fourth Amendment’s “plain view” exception to try to bring charges for evidence outside the scope of the warrant. Second, he wanted the government to agree to search the computer using a taint team. The government refused to go along with those requirements, and Judge Donohue indicated he would deny the application on that basis. Prosecutors then asked Judge Donohue to write an opinion explaining the reasons for his denial so the government could appeal the decision to the District Court. The opinion was sealed until Cunnius was indicted, at which time the opinion was made public.

Judge Donohue’s basic argument is straightforward: Computer searches are so invasive and so thorough that there should be limitations on how they are conducted to ensure they are reasonable. He then reasons that the CDT opinion seemed to invite magistrate judges to impose restrictions ex ante if they thought it appropriate, so he was able to do in that case. (Judge Donohue goes back and forth between suggesting that he has no choice to impose the restrictions and saying that he thinks it is merely a good idea to do so, but I’m not sure it makes much difference.)

It will be fascinating to see what happens with this case. As I explain in my recent Virginia article, I don’t think magistrate judges have the power to impose ex ante limitations on computer warrants outside probable cause and particularity. I agree that the differences between computer searches and physical searches justify some different rules on the former — including, in my view, ending the plain view exception for digital searches. But I think those differences must be recognized in litigation ex post when the courts have an actual set of facts, not ex ante when a magistrate judge receives a warrant application. Trying to guess at reasonableness ex ante, when there are no facts and there is no adversary process, seems like a very poor way to arrive at the proper application of fact-sensitive reasonableness that the Fourth Amendment requires. Just to be clear, this isn’t a pro-government or pro-privacy position. Rather, it’s a position about the nature of Fourth Amendment decisionmaking, and specifically the need to hand down Fourth Amendment rules in cases with actual facts and with real cases or controversies that can be appealed up to the Supreme Court.

Anyway, stay tuned. This should be an interesting case to watch.