United States v. Mitchell and the Duration of a Computer Seizure:
The Eleventh Circuit handed down an interesting Fourth Amendment case last week, United States v. Mitchell.

  The facts: The police suspected Mitchell of downloading child pornography, and they went to talk to him at his home. Mitchell candidly admitted to downloading child pornography. Mitchell then brought an officer to his computer, and officer asked if the computer had child pornography stored on it. Mitchell acknowledged that the computer contained child pornography, although he did not consent to allow the officers to search it. Given that the computer contained contraband, the officers decided to open up the computer and take the hard drive away.

  The seized hard drive sat in the government's lab for three weeks until the lead agent applied for and obtained a warrant to search it. (The agent was out of the office on training for two of those weeks, and he didn't think he needed to be in a hurry.) An eventual search of the computer under the warrant yielded contraband images, leading to charges against Mitchell for downloading and possessing images of child pornography. When Mitchell's motion to suppress the images found on the seized hard drive was denied, Mitchell pled guilty to the charges, conditional on his right to appeal the motion to the Eleventh Circuit.

  Held, in a per curiam opinion (Birch, Barkett, Korman by designation): The conviction is vacated because the evidence found on the seized hard drive must be suppressed. The initial seizure was justified, but the police needed to obtain a warrant in a reasonable period of time to justify the continued detention and search. Three weeks was just too long under the circumstances of the case to wait given the sensitive nature of information stored on a computer:
  Computers are relied upon heavily for personal and business use. Individuals may store personal letters, e-mails, financial information, passwords, family photos, and countless other items of a personal nature in electronic form on their computer hard drives. Thus, the detention of the hard drive for over three weeks before a warrant was sought constitutes a significant interference with Mitchell's possessory interest. Nor was that interference eliminated by admissions Mitchell made that provided probable cause for the seizure.

  . . . No effort was made to obtain a warrant within a reasonable time because law enforcement officers simply believed that there was no rush. Under these circumstances, the twenty-one-day delay was unreasonable.
  The court emphasized that its holding was context-specific:
While we conclude that the delay in obtaining a warrant here was not justified, we emphasize again that we are applying a rule of reasonableness that is dependent on all of the circumstances. See Martin, 157 F.3d at 54. So for example, if the assistance of another law enforcement officer had been sought, we would have been sympathetic to an argument that some delay in obtaining that assistance was reasonable. The same would be true if some overriding circumstances arose, necessitating the diversion of law enforcement personnel to another case. We also recognize that there may be occasions where the resources of law enforcement are simply overwhelmed by the nature of a particular investigation, so that a delay that might otherwise be unduly long would be regarded as reasonable.
  I suspect some will find the result in this case rather odd. After all, Mitchell admitted that the computer contained contraband images, so it might seem irrelevant exactly when the government obtained a warrant. But the court's analysis seems correct to me. In most cases like this, the officers will obtain the target's express consent to take the hard drive. The officers here tried to get Mitchell's consent, but he initially denied them consent and they apparently didn't ask him again at the end after he admitted that the computer contained the images. Nor did the officers actually see the images themselves before they took the computer away, which would have permitted a plain view seizure (although it might have raised interesting questions about exactly what could be seized under plain view principles).

  As a result, the officers were in Illinois v. MacArthur territory: They could only deny the owner his property temporarily while they obtained a search warrant. Twenty-one days is an exceedingly long period of time to keep property that can only be temporarily seized pending the issuing of a warrant. Under that line of cases I think the court was right to say it was just too long. As best I can tell, the government apparently did not argue inevitable discovery, so that issue wasn't before the Eleventh Circuit.