Archive | Ex Ante Warrant Restrictions

United States v. Cote and the Trouble With Ex Ante Search Restrictions on Computer Warrants

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 [...]

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Vermont Files Cert Petition in Case on Ex Ante Search Restrictions for Computer Warrants

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 [...]

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Vermont Supreme Court Concludes that Magistrates Have the Discretion to Add at Least Some Kinds of Ex Ante Search Restrictions to Computer Warrants

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 [...]

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Interesting Article on United States v. Collins, Case on Ex Ante Limitations on Computer Warrants

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 [...]

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New Case on Ex Ante Restrictions on Computer Warrants

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, [...]

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Legal Brief Discusses Blog Post on Earlier Round of Legal Briefing

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. [...]

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The Historical Role of Warrants, Particularity, and Magistrates

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 [...]

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Vermont Supreme Court Hears Oral Argument in Challenge to Ex Ante Restrictions on Computer Warrants

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 [...]

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Significant Test Case in Seattle on Lawfulness of Ex Ante Search Limitations in Computer Warrants

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. [...]

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