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The Ninth Circuit's Erroneous Analysis of Computer Searches in United States v. Payton:
The Ninth Circuit recently issued a remarkable decision on the search and seizure of computers in United States v. Payton. I suspect this case may go en banc, as the issue is pretty important, so it may not be the last we've heard about it. Still, I wanted to flag the many errors in this opinion for readers in case the case stays on the books. You can read the appellant's opening brief here, the government's brief here, and the reply brief here; you can listen to the oral argument here. (I would have blogged about it earlier, but I was on my blogging hiatus when it came down on July 21.)

  The facts of the case are simple. The police had reason to believe that Payton was selling drugs from his home, and they obtained a warrant to search his home for drugs, sales ledgers relating to drugs, and financial records for the person who lived in the home. The affidavit of probable cause specifically requested permission to search any computer located in the house. The affidavit explained that based on the officer's experience, financial records were likely to be found on a computer, and so it requested permission to search any computers on site and seize any machines if evidence was found on them.

  During the search, an officer saw a computer in the bedroom that was "on" but had its screensaver up. The officer moved the mouse, which removed the screen saver. He then clicked open a file, and saw that it contained child pornography. Further investigation confirmed that Payton had other images of child pornography on his computer, leading to child pornography charges. No drugs or records about drugs were discovered.

  In a decision by Judge Canby, joined by Judge Wardlaw and District Judge Mills, the Ninth Circuit suppressed the child pornography discovered in the computer. According to Judge Canby, the high storage capacity of computers made it constitutionally unreasonable to search a computer in those circumstances. Although the affidavit requested permission to search computers discovered when the warrant was executed, the affidavit was not incorporated: The warrant itself did not explicitly authorize the search of computers.

  Further, there was no specific evidence found in the home near the computers that suggested that the evidence such as financial records were stored in the computer. The officers did not find any other evidence within the scope of the warrant elsewhere in the home, and that made it unlikely that there would be evidence described in the warrant inside the computer. The court concluded: "In the absence of any circumstances supporting a reasonable belief that items specified in the warrant would be found on the computer, the search did not meet the Fourth Amendment standard of reasonableness."

  Judge Canby also commented on the policy consequences of a contrary rule:
Our confidence in our conclusion is buttressed by contemplating the effect of a contrary decision. In order to uphold the search in this case, we would have to rule that, whenever a computer is found in a search for other items, if any of those items were capable of being stored in a computer, a search of the computer would be permissible. Such a ruling would eliminate any incentive for officers to seek explicit judicial authorization for searches of computers. But the nature of computers makes such searches so intrusive that affidavits seeking warrants for the search of computers often include a limiting search protocol, and judges issuing warrants may place conditions on the manner and extent of such searches, to protect privacy and other important constitutional interests. We believe that it is important to preserve the option of imposing such conditions when they are deemed warranted by judicial officers authorizing the search of computers. If unwarranted searches of computers are automatically authorized by upholding the search in Payton's case, that option will be lost.
  It's hard to know where to begin with the number of problems with this opinion. I think I'll start with the big-picture conceptual issues; then turn to Supreme Court precedent; and then go to Ninth Circuit precedent.

  1) To begin with the most basic conceptual error, the Fourth Amendment simply does not require warrants to list the items to be searched. As the text of the Fourth Amendment makes clear, warrants must "particularly describ[e] the place to be searched and the persons or things to be seized" (emphasis added). The Fourth Amendment requires a description of the things to be seized, not a description of containers that are searched during the hunt for the things to be seized. I don't think I have ever seen a warrant that specifically listed the items to be searched: There isn't even a place for that on the standard warrant form.

  The text of Rule 41, the rule that governs search warrants, makes this point plain: It requires warrants to list the property that the agents want to "search for and seize." Note search "for," not search. (This was a state warrant, to be clear, so Rule 41 isn't directly applicable; I point it out only to emphasize that there is no requirement that warrants list the items to be searched.) When the officer moved the computer mouse and saw the image, he didn't seize a computer. He didn't even seize the image. Rather, he searched the computer without seizing anything. It was unneceesary to get prior authorization to seize a computer because no computers were actually seized.

  2) Now I'll move on to Supreme Court precedent. There is no specific Supreme Court precedent on how the Fourth Amendment applies to the search of computers. But it's worth noting that the Supreme Court has been clear that a warrant to search a place for specific evidence permits the search of anything in that place where the described evidence could be located. Here's Justice Stevens making the point pretty forcefully in United States v. Ross, 456 U.S. 798 (1982):
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found, and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.
It seems to me that Judge Canby's decision in Payton tries to create just such a "nice distinction" for computers. But I think it's hard to square with the Supreme Court's view in Ross.

Melancton Smith:
Seems like computers, networks, and such provide a new facet to "places." For instance, suppose I have a web server with some information linked over from a web server at a different site. You'd have to have warrants for all physical locations where data is referenced or stored on a web server.

Is a web-site a 'place'? Are the contents of that 'place' only the files physically stored on equipment in the physical location?
8.18.2009 2:44pm
OrinKerr:
Melancton Smith,

The warrant was for the "place" of Payton's home: The computer was inside the home. That part of the picture seems pretty straightforward in this case.
8.18.2009 2:48pm
PersonFromPorlock:

It was unneceesary to get prior authorization to seize a computer because no computers were actually seized.

So, if a police officer is using my computer's mouse and I say "Hand it over," he'll meekly hand me the mouse? I don't think so. Face it, at that point the computer is seized: seized-in-place, but seized.
8.18.2009 2:52pm
PatHMV (mail) (www):
PFP... no more than your house is "seized" while they conduct the search, even though they temporarily bar your access to it. Nor is your filing cabinet "seized" simply because they won't let you take files out of it while they search through it.
8.18.2009 2:57pm
Soronel Haetir (mail):
I guess my problem with computer search rationale is this: OK, they had a warrant that included looking for financial records. Are images files actually expected to contain such information?

I would say that searching image files violates the stricture against looking in containers that can't hold the searched for item.
8.18.2009 3:16pm
OrinKerr:
PPP,

I appreciate your confidence in your views, but I'm not sure I understand what you think a seizure is -- or how you would square your view with existing doctrine. Perhaps you could elaborate?
8.18.2009 3:18pm
Soronel Haetir (mail):
Yet that process seems very routine in computer searches. Why is an officer's first inclination when examining a computer to open a file type unrelated to the sought for information?
8.18.2009 3:19pm
eyesay:
FBI agents come to my door and show me a warrant to search for drugs in my bedroom. Scenarios:

1. In my bedroom, I have a rare, valuable potted plant, a specimen I obtained on a trip to Nepal, many days' journey from the nearest motor transportation. (All laws of Nepal and the United States were complied with in bringing the plant home.) An FBI agent starts to yank the plant out of the dirt. "What the hell do you think you're doing?" I ask. "We have a warrant to search your house for drugs. How do I know there aren't drugs hidden in the dirt?"

2. Lying on a rug in my bedroom is my beloved dog Fido. An FBI agent holds up a knife and says, "we think you hid the drugs in condoms swallowed by your dog, and we're going to open his stomach and find them."

So the question is, does a warrant to search "in the bedroom" include taking actions that would kill a rare and expensive plant, or my dog, especially if the real motivation is not to search in those places but to coax me to reveal where the drugs are?

If such searches are allowed, why don't law enforcement agents routinely threaten to destroy potted plants or other valuable objects, or murder pets, in order to obtain the evidence they seek?

If such searches are not allowed, on what basis is it legal to search an unnamed computer but not an unnamed potted plant or an unnamed dog?
8.18.2009 3:31pm
PatHMV (mail) (www):
Doesn't really matter, Soronel. It's trivially simple to label an Excel spreadsheet with a ".jpg" extension. Doesn't make it any more difficult to use, except that you have to tell the computer to open that file with Excel rather than the picture viewer. The warrant is to search the computer for financial data. There's no obligation to avoid at all costs opening other files. In fact, it's not a bad idea at all to spot-check a few files to see if they really are what they are labelled to be. Plenty of people hide files in deceitfully named folders. A guy hiding his porn from his girlfriend might put it under a folder labeled "accounting records." A guy looking to hide financial records, however, might very well hide them under the "porn" folder.

In other words, when you have a warrant based on probable cause to search someplace, you don't have to take anything in that place at face value. You can look into any nook and cranny, no matter how "innocent" it may appear at initial glance.
8.18.2009 3:35pm
Crunchy Frog:
[Deleted on civility grounds.]
8.18.2009 3:36pm
Dilan Esper (mail) (www):
One thing I wonder is whether the privacy issues with computers are so different than the privacy issues raised by searches of one's person or one's home that, rather than attempting to analogize and fit everything related to computers into existing Fourth Amendment doctrine, it might not make more sense to develop a new set of rules related to computers based on a reasonableness analysis specific to computer searches.

The fact is that the analogies between searching in a computer and searching a physical home are quite strained, and it's easy to glom onto this or that Fourth Amendment exception by analogy and thus devalue the privacy interests that people reasonably hold in the contents of their computers.
8.18.2009 3:36pm
ruuffles (mail) (www):

While they are at it, why don't they disembowel you as well, since you are in your bedroom at the time?

Cavity searches.
8.18.2009 3:37pm
PatHMV (mail) (www):
Absolutely they can look in your potted plant. Your dog is doubtful, as most courts I suspect would make a distinction between vegetable and animal life. If your dog acts aggressively towards the officers, though, you can bet they will shoot it.

Are you really asking why law enforcement officers don't routinely abuse their powers by threatening to damage your possessions for pretextual reasons, in order to persuade you to tell them where your contraband is?
8.18.2009 3:38pm
PatHMV (mail) (www):
Dilan... how are the analogies in the least bit strained in this particular case? How is having porn on the computer any different in this case than having porn physically hidden in the house?

The cop walks in and sees a filing cabinet: "Oh look," he says, "a filing cabinet. Could be records of the drug sales in there, let me go through the files." Then inside the filing cabinet, he finds folders of child pornography. Same case as here, nothing substantially different. Same thing applies if the porn is in a box or hidden on a shelf or anywhere else. Printed porn could be hidden in all the same places that paper financial records could be hidden.

Just because you put your contraband on your computer instead of keeping it printed out doesn't give you any greater privacy rights.
8.18.2009 3:41pm
einhverfr (mail) (www):

So the question is, does a warrant to search "in the bedroom" include taking actions that would kill a rare and expensive plant, or my dog, especially if the real motivation is not to search in those places but to coax me to reveal where the drugs are?


Is there any case as to whether the takings clause would be triggered at some point?

For example if you wear an expensive broach (say $10k) through airport security and they confiscate it pretextually (claiming it is sharper than it is or whatever), do you have a takings case?
8.18.2009 3:44pm
Bruce:
Great post. As I read the facts, I thought it was going to be a decision on applying plain view to computers. Two questions:

1) Orin, do you think the reasoning here is in part driven by the long sentences for child pornography possession? The very high sentences for material that seems to be on a lot of people's computers may be putting pressure on other doctrines.

2) How many more posts are left before you clear out the backlog?
8.18.2009 3:45pm
OrinKerr:
eyesay,

Yes, it is lawful to search the plant; of course it is. See United States v. Ross, quoted in the post. You can imagine the obvious problem with a contrary rule: If you put all your evidence in an expensive plant, the government couldn't search it even with a warrant.

As for the dog, I am unaware of any Fourth Amendment case law on canine slaughter to find drugs. Surgery of a person to withdraw evidence would be governed by winston v. lee: if the surgery is not life threatening and there are no reasonable alternatives, yes, the person could be searched pursuant to a warrant in that way. But these sorts of facts woudn't come up because the police just wait for the person to "go," and would presumably do the same in the case of a dog.

As for why the police don't routinely threaten to murder Ol Yeller when they execute a warrant, I'm not sure what you think that has to do with the Fourth Amendment or any thing related to this case. Perhaps you can explain?
8.18.2009 3:46pm
Soronel Haetir (mail):
Pat:

And in that case I would argue that the police should be required to make a more forensic type investigation of the computer, using file metadata for the type classification rather than extension and only search those files that can reasonably hold the sought for information.

If someone actually renames their excel spreadsheet to a .jpg extension I doubt they are going to alter the association, instead they will open that particular .jpg with excel, negating the entire point of the exercise you just laid out.
8.18.2009 3:47pm
East_:

The warrant was for the "place" of Payton's home: The computer was inside the home. That part of the picture seems pretty straightforward in this case.


Clear in Payton, but less so in Melancton Smith's hypothetical. Given the ease with which computers can be interconnected, your home computer might well contain the whole world. A search shouldn't just encompass everything you can reach from the computer without leaving the house.
8.18.2009 3:49pm
Soronel Haetir (mail):

The cop walks in and sees a filing cabinet: "Oh look," he says, "a filing cabinet. Could be records of the drug sales in there, let me go through the files."
Then inside the filing cabinet, he finds folders of child pornography. Same case as here, nothing substantially different. Same thing applies if the porn
is in a box or hidden on a shelf or anywhere else. Printed porn could be hidden in all the same places that paper financial records could be hidden.


I see this being more like searching for financial records and finding an auto repair manual and then searching the pages of that manual to see if the ledgers are kept in the margin, but instead finding porn interleaved. At some point the container becomes dissimilar enough that searching for the financial records is only a pretext hoping to find something else.
8.18.2009 3:52pm
PatHMV (mail) (www):
einhverfer... Except for guns and legal contraband, the airport authorities don't actually "confiscate" anything. They give you a choice, either keep the item with you, or get on the plane. If you get on the plane, you have to throw it away or give it to them. If you choose not to fly, you keep it. Personally, I think there's a market for an airport service which provides small, postage-paid boxes. Give them 30 bucks, slip your pocket knife (or whatever) in there, and it gets sent by mail to either your destination or your home, you choose.

Orin, are there ever any takings issues associated with damage done during warrant-based searches? If the police are careless with eyesay's fancy potted plant, for example, and cause it to die in the process of searching it, can that ever be a taking? Or suppose the police damage a $2 million old master painting by carelessly removing the canvas while searching for some hidden document?
8.18.2009 3:52pm
PatHMV (mail) (www):
Soronel... criminal really do hide stuff. Cops have no obligation to assume that anything they are told by the person being searched is true, or that anything is what it appears to be. Otherwise, as Orin notes, you give criminals a text book on how to hide things in ways which the cops will be prohibited from searching. If porn can be hidden in the auto manual, so could financial records. Why would you assume that a child pornography criminal would be the only type who might hide porn in an auto manual? What's so different about porn that a criminal might hide it in the manual, but not accounting records?

If the police were searching for a gun, then yes, it would be inappropriate to search on the computer or read through every page of the auto repair manual. But if they are searching for documents or computer files, they can open and look in any place which could actually hold such documents or files.
8.18.2009 3:57pm
Joe T. Guest:
Yet that process seems very routine in computer searches. Why is an officer's first inclination when examining a computer to open a file type unrelated to the sought for information?


Not only is it easy to change file extensions, but it is also easy to encode data within another type of file - for instance encoding financial data or text within a .jpg file.

To the extent you recognize some heightened expectation of privacy in electronic equipment, you create an exception that rewards technological sophistication in crime - the ordinary con artist gets searched for documentary evidence of a crime, but evidence of larger crimes hidden in IT systems (e.g. Madoff) are searchable only to a higher showing of suspicion than the ordinary confidence man; so too with child pornography or terrorist activity (or other national security lawbreaking). Seems to me the search standard should be about equal regardless of the medium in which the suspicious material may be hidden.
8.18.2009 4:02pm
Soronel Haetir (mail):
Pat,

I guess I am just saying I am uncomfortable allowing file extensions to be such a pretext. I am perfectly fine with using more discriminate tools that can actually detect spreadsheets that have been renamed.

If looking for financial records I would even be fine with running OCR on every image on the computer just in case the records are actually hidden as real images. But to allow the police to open random actual image files when what is being looked for is extremely unlikely to be formatted as an actual image strikes me as crossing the line beyond a container capable of holding the sought for evidence.

An image file that ocr fails to extract anything from, is almost by definition, a file that can not possibly contain financial records.
8.18.2009 4:02pm
Soronel Haetir (mail):
The only thing I believe I am recognizing is that a computer is more than one container. And that you have to have a reason to open any particular container.
8.18.2009 4:03pm
Soronel Haetir (mail):
Okay, so a different container question. Is size the only consideration that the police must look at?

Say you have a small cardboard box that is physically large enough to conain a gun, but by weight obviously cannot hold anything so heavy. How much leeway is given here? Can the police take off the lid if they haven't already discovered it is too light, or must they learn more about the exterior properties of the box before performing that search?

If there is a requirement beyond mere size that is very close to the rule I am trying to invoke in a computer context.
8.18.2009 4:10pm
UID:
The best compromise between intrusiveness and efficacy of a search would be to search for file headers and extensions matching those used by text/spreadsheet/financial software programs. (Headers are what enable Excel to recognize and open an Excel file with a JPEG extension, e.g.)

Anything more is going to require you to search the entire contents of all files and not just the 'addressing'/'packaging'.

Digital data can be easily manipulated in a variety of ways. Headers can be altered or removed. Metadata can be removed or altered. Heck, you COULD convert a spreadsheet into a JPEG snapshot. Though monumentally inconvenient, you could then use an OCR (optical character recognition) program to convert it back into text.

At some point, lines have to be drawn if there are to be any limitations at all on what constitutes a reasonable computer search.
8.18.2009 4:11pm
anton:
This seems to highlight for me the problem with relying on past precedent to decide novel cases. Is a computer really like a footlocker containing marijuana? I can see how and why the 9th Circuit's prior case law might have compelled a particular result, but it doesn't strike me as irrational for the court to say, in effect, this is a new situation so here is a new rule.
8.18.2009 4:14pm
PatHMV (mail) (www):
"Extremely unlikely"? What is your basis for saying that? There is no basis for saying that. Criminal hide stuff. If you have probable cause to obtain a search warrant, then you have probable cause to assume that the person whose property you are searching is a criminal, and thus that they may be hiding stuff from the police.

It is very well settled that the police can go through your family photo album if they need to, looking for documentary evidence. What's different about the computer? Not a thing.

The computer is NOT more than one container, any more than a filing cabinet is more than one container. You keep trying to draw a distinction between the computer and everything else, but there's not one. Cop 1: "Oh, look, in this filing cabinet there's a folder labeled 'receipts for innocuous business purposes'." Cop 2: "Ok, well, don't open that folder then, that is extremely unlikely to hold records of criminal activity, so we can't search it."
8.18.2009 4:15pm
PatHMV (mail) (www):
UID... what is the policy reason for imposing greater limitations on searching a computer than searching traditional paper files in the man's house?
8.18.2009 4:16pm
Soronel Haetir (mail):
Another leeway question, again going to how carefully the outside of a container has to be examined: A firearm is sought, of known make. How much good faith belief are the police given about a container that is too small, but is in fact heavy enough to hold the sought item?

For purposes of this question, the box is just small enough that the pieces could not fit even if they were damaged beyond ability to re-assemble the weapon, say by 6 cubic inches.
8.18.2009 4:17pm
eyesay:
PatHMV, yes, I am asking that question.

Orin Kerr: As for the plant, I can imagine a contrary rule: Suppose the original warrant doesn't mention the plant, but the officers see the plant and say, "If you won't let us pull the plant up by the roots, one of us will sit here and wait, and the other will be back soon with a warrant to search the plant." That leaves a judge in the loop to decide if the search is reasonable. (For example, if the item was stolen within the past 24 hours, it's not reasonable search for it in the body of a cactus that shows no signs of having been cut open recently.)

Or, if the item suspected of being hidden would show up using some non-invasive technique such as X-rays, law enforcement officials could be required to use such techniques, especially if the plant or other object is of great value.

PatHMV put my question well. I am concerned that if a warrant is not specifically required to name an animal, or valuable objects, in order to cut them or damage them, then law enforcement agents can avail themselves of powerful coercion. "How do we know you didn't cut open your hamster's belly and hide the diamond ring there?" or, "How do we know you didn't unglue the legs of that $35,000 17th century antique French chair and hide the ring in there?" etc.

Even if the proposed surgery would not kill your beloved pet, the thought of inflicting pain and suffering could be a powerful motivator to coerce you to reveal something — perhaps even something unrelated to the warrant — that I don't know if law enforcement officials should be entitled to discover by these means.

Are there rules about these sorts of procedures? If they reasonably believe that the sought-for item was surgically placed in your hamster's belly, are law enforcement officials allowed to perform the operation on the spot, without anesthesia, and leave it to you to rush the pet to get emergency stitches? Or do they have to take the pet to veterinarian to perform the operation? (Let's assume that the sought-for item would not show up on X-rays or other non-invasive scans.)
8.18.2009 4:19pm
Dilan Esper (mail) (www):
Dilan... how are the analogies in the least bit strained in this particular case? How is having porn on the computer any different in this case than having porn physically hidden in the house?

Because the filing cabinet doesn't contain a record of everything you ever filed there. Because the filing cabinet has much more limited storage space making it less likely that unrelated things are there. Because the filing cabinet only collects the information that the owner deliberately puts there. And because when you remove something from a filing cabinet, it doesn't keep a clandestine copy of it.

You see, computers AREN'T like filing cabinets. It severely undervalues personal privacy interests to just draw a clumsy analogy.
8.18.2009 4:20pm
UID:
@PatHMV

Disclaimer - I am a techie, not a lawyer.

However, I don't see necessarily it as a "greater limitation."

I see it as probabilistic approach constrained by the reasonableness requirement.

For example, if you're conducting a routine search of a house for "papers", that doesn't necessarily mean you can search everything in the house on the off-chance that the information was hidden in a microfilm dot or microscopically etched onto something.
8.18.2009 4:23pm
UID:
P.S. (Or does it? As I said before, not a lawyer.)
8.18.2009 4:24pm
OrinKerr:
Eyesay writes:
As for the plant, I can imagine a contrary rule: Suppose the original warrant doesn't mention the plant, but the officers see the plant and say, "If you won't let us pull the plant up by the roots, one of us will sit here and wait, and the other will be back soon with a warrant to search the plant." That leaves a judge in the loop to decide if the search is reasonable. (For example, if the item was stolen within the past 24 hours, it's not reasonable search for it in the body of a cactus that shows no signs of having been cut open recently.)
You could imagine a fourth Amendment that worked that way, to be sure. But you'd have to acknowledge that it's not the Fourth Amendment that we have ever had, either at common law or according to modern caselaw. That's the point of Ross, right?

The broader problem with your view is that judges are not empowered to only sign search warrants if they think the search is going to occur in a reasonable way: Their job is to determine if the warrants is based on PC and is particular, and to sign it if is and decline to sign it if it's not. To put it another way, the Framers of the constitution determined what is a reasonable warrant when they required PC and particularity: They didn't defer the task to state trial judges.
8.18.2009 4:25pm
Soronel Haetir (mail):
Pat,

I would in fact say that a file cabinet is more than one container. Certainly when searching a file cabinet you have reason to search every container held within, most of the time anyway.

But a file cabinet could just as easily hold one of the boxes I asked about above. I would certainly think that a file cabinet would in general be a legit place to search for a gun, but the light box at least should be off limits, even if it were found inside a file cabinet.
8.18.2009 4:26pm
Daryl Herbert (www):
When the officer moved the computer mouse and saw the image, he didn't seize a computer. He didn't even seize the image. Rather, he searched the computer without seizing anything.

The officer took exclusive control of the computer. That's not a "seizure"?
8.18.2009 4:26pm
eyesay:
Orin Kerr, is there probable cause to think that a diamond ring stolen yesterday could be hidden in the body of a cactus that shows no scars from recent cutting? So, are the officers permitted to damage the cactus, or threaten to do so, either just out of orneriness or in the hopes of coaxing you to tell them what they want to know, when a reasonable person can tell that the stolen diamond ring is not in the cactus?
8.18.2009 4:31pm
Soronel Haetir (mail):
Or a search in the opposite direction. A warrant is served on a location searching for child porn. None is found. May the police legally seize firearms that were not listed on the warrant and check to see if they were stolen? Does this change if computers are seized and it is unknown whether they contain CP?

Assume that none of the people in the house is a felon or otherwise disqualified from owning a gun.
8.18.2009 4:33pm
OrinKerr:
eyesay,

I'm finding it increasingly frustrating to answer your questions, as I feel like you're not particularly interested in my responses. Perhaps you should research the law on your own?
8.18.2009 4:43pm
Philistine (mail):
Prof. Kerr:

It bothers me that the officer specifically asked for permission to search computers and that such permission wasn't given (though the Judge testified he meant to give it), and yet the officer searched anyway. The

If, for example, the judge gave permission, but limited it somehow (say to files with word-processing or spreadsheet extensions), and the officer similarly clicked on a picture file, do you think the evidence should be supressed?

On a tangentially-related note: Do you think there would be any kind of plain-view exception based on file names? For instance, if the screen saver was off, and a file listing was visible with file names that suggested child porn, do you think a plain-view analysis would allow clicking on the file if the search were clearly for something physical, like drugs or guns?
8.18.2009 4:44pm
OrinKerr:
And I should add, re my 4:43 comment, that I don't mean that to be snippy (and I apologize if it came off that way) . I'm just finding that we're going in circles.
8.18.2009 4:45pm
SeaDrive:
IANAL, but I would summarize the message at Cybercrime (http://cyb3rcrim3.blogspot.com/) as "the judge is going to let the evidence in." It takes a really blatant misstep to disqualify it.
8.18.2009 4:49pm
OrinKerr:
It bothers me that the officer specifically asked for permission to search computers and that such permission wasn't given (though the Judge testified he meant to give it), and yet the officer searched anyway.

As I read it, the state judge testified that he specifically thought he was granting permission by signing the warrant, not just that he meant to but didn't. In this regard it's helpful to read United States v. Hill, in which the Ninth Circuit discusses how asking for permission to seize and search offsite in the warrant generates a sort of permission to execute the warrant that way. So to summarize, the police tried to ask for permission to do something they didn't need permission to do; the state judge tried to give them permission to do it; and the Ninth Circuit ruled that the search was unconstitutional because the effort to give permission for the thing the officers didn't need permission for was unsuccessful.
8.18.2009 4:51pm
PatHMV (mail) (www):
Orin, I do think it's a legitimate question to ask you, who is the expert in these matters, if there are any limits to what the police may do in terms of causing irreparable damage to property in the course of a search. I'm very curious myself.

It comes up all the time in TV shows. For example, I'm a fan of In Plain Sight, about the Witness Protection program. Last season, the FBI searched the main character's house (she's a U.S. Marshal), with a warrant, looking for cocaine which they had probable cause to believe was in the possession of the Marshal's sister, who was staying in the house. In the course of the search, they tore down sheet rock on the walls and ceilings, etc.

I have no doubt they are entitled to do so, since cocaine can (and is often) hidden in walls or otherwise apparently inaccessible places. But my question is whether the police ever have an obligation to provide compensation, under the Takings clause, for such a destructive search. Does it make a difference whether the property is reparable, such that anybody could just hire a contractor to replace the torn sheet rock, or irreplaceable, like the very unique plant described in eyesay's question? Could the police bust open a common, $5 terra cotta planter, but not a $2 million Ming vase? What's the rule? Surely there is at lease SOME limit on them destroying your personal property in the course of the search? Do they have an obligation to use the least damaging method of inspection available, or do they have entire unfettered discretion to decide whether to open a door or rip it off its hinges?
8.18.2009 5:06pm
OrinKerr:
PatHMV,

I agree it's legitimate -- Indeed, it is entirely legitimate for any of our thousands of readers to ask me to answer any of their Fourth Amendment questions. For that matter, it's also legitimate for me to ask all of our readers to send me bottle of Chimay for the pleasure of reading my posts. The question is not what is legitimate, but rather what requests we expect the other to fulfill.

As for the question of destruction of property, I have blogged about this before: Generally speaking, damage to property is outside the Fourth Amendment:It's primarily an issue of state law tort remedies, which vary considerably.

P.S. Send the Chimay to my work address. Thx.
8.18.2009 5:14pm
Soronel Haetir (mail):
Following Pat's last question, how about items that are actually capable of dis-assembly. Can the police skip that process to save time, even though it would cause irreparable damage?
8.18.2009 5:16pm
Dilan Esper (mail) (www):
I agree it's legitimate — Indeed, it is entirely legitimate for any of our thousands of readers to ask me to answer any of their Fourth Amendment questions. For that matter, it's also legitimate for me to ask all of our readers to send me bottle of Chimay for the pleasure of reading my posts. The question is not what is legitimate, but rather what requests we expect the other to fulfill.

Professor Kerr, we lawyers in private practice have a fullproof method of screening such requests, perhaps one that isn't always available to you folks in the law professorship contingent.

It's called a "retainer" [grin].
8.18.2009 5:33pm
CarLitGuy:
PatHMV,

In partial answer to your question, you may want to read here, from a recent decision:

County of Butte v.

Its a link to Shawn Martin's blog, the California Appellate Report, "County of Butte v Superior Court". It has an unusual fact pattern some readers may enjoy.
8.18.2009 5:36pm
CarLitGuy:
and the decision itself... (sorry, should have included in the above post)

County of Butte v Superior Court
8.18.2009 5:38pm
PatHMV (mail) (www):
Thank you, Orin. I do realize that the issue I raised stemmed from other comments, and is not raised by your original post. But I don't think you and eyesay were going in circles on that particular issue, so I asked it that one last time, because I thought you two were talking past each other on that point, rather than going in circles.

I don't actually recall owing you a beer ;-), but if you're ever in Baton Rouge, we have a very nice local tavern which specializes in international beers, so I'll be happy to buy you a Chimay or any other beer of your choice then!
8.18.2009 5:44pm
eyesay:
Professor Kerr, I have tried to conduct this conversation respectfully, and I apologize if it seemed like I was ignoring your comments and rudely asking the same question again, after you had already answered it.

In response to my post of 3:31pm, you said that it's lawful to search the plant, and as for the dog, you said that they would wait for the dog to "go." So I switched to the idea of hiding the ring in the hamster's belly so that waiting for the animal to "go" would not work.

You replied with facts about how the Fourth Amendment and warrants work. I get that warrants name general places, and not objects within those places, to be searched. But what remains unanswered is, given a valid warrant, what limitations are placed on law enforcement officials in inflicting pain on animals or requiring them to minimize actual damage and risk of damage to animals, plants, and non-living objects, especially if the purpose of inflicting this pain or damage, or threatening to do so, is to coerce someone to reveal information?

I think the relevance is clear of this to the Fourth Amendment, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." Is it reasonable to cut open a cactus as I've described before, or your hamster, by an untrained law officer without anesthesia?

Anyway, thank you for your tireless efforts to educate and inform about the law. Seriously!
8.18.2009 5:47pm
OrinKerr:
Thanks, eyesay -- sorry for the confusion.

I don't think I have ever come across a case with facts like the one you're suggesting. If the police execute a warrant in a way that reveals that it's just a pretext for something else, such as trying to extort information, a defense attorney can challenge the execution of the warrant as being in "flagrant disregard" of its terms.
8.18.2009 5:55pm
FWB (mail):
Words have meaning:

PLACE to be searched.

THINGS to be seized.

Search the house, seize the computer. No permission was given to search a THING.


Get judge's permission to search the computer for the info. Cooley states it quite succinctly. Go read the book.

Tiocfaidh ar la!



DUHHHH!!!!!
8.18.2009 6:04pm
PatHMV (mail) (www):
FWB. A filing cabinet is also a "thing." So is a shoe box. So by your analysis, the police cannot search inside any containers in the house, but must bring them all back to the judge.

Sorry, but that's not the law, and never was, even in 1791. Authority to search a place includes the authority to search all THINGS within that place that might contain other THINGS.

DUHHHH!!!!!!
8.18.2009 6:15pm
ShelbyC:

...especially if the purpose of inflicting this pain or damage, or threatening to do so, is to coerce someone to reveal information?

If you could prove that they were not trying to find evidence, but to coerce you into revealing information, I'd imagine you'd have a 5th amendment issue.
8.18.2009 6:18pm
CarLitGuy:
I would think (non attorney that I am) that any evidence turned up as a result of an admission made under duress, such as the suggested LE offer to body cavity search the pet by means of scalpel on the premises, could be, or should be, quashed on 5th amendment grounds against self incrimination - given the means used to extract the confession.

But that supposition is WAY outside my normal reading habits, and may simply reflect too much "made for television" lawyering.
8.18.2009 6:20pm
George Weiss (mail) (www):
this opinion is bad indeed.
8.18.2009 6:43pm
Malvolio:
OK, they had a warrant that included looking for financial records. Are images files actually expected to contain such information?
Sure, that's where I'd put them. Look into steganography.

But my question is, does the average meth-dealer keep financial records? Why would they? What would the records consist of ("Sold a little bag of meth and some other stuff for a wad of money, looked like about $100, to some dude in a hat")? Finally what probable cause was there that such records existed?

Without that last question being answered, it seems like the Fourth is pretty much out the window. You could keep records pertaining to any in just about any place and on the very thin evidence they had against this guy (his roommate may or may not have been selling meth), there's nobody who's safe.
8.18.2009 6:54pm
PersonFromPorlock:
OrinKerr:

P[F]P,

I appreciate your confidence in your views, but I'm not sure I understand what you think a seizure is -- or how you would square your view with existing doctrine. Perhaps you could elaborate?


I pick up your pen. You say "give it back." I say "no." I have seized your pen. Later I may take it away with me, or I may hand it back, but at that point it's seized.
8.18.2009 7:09pm
deweber (mail):
This emphasis on location and item presents an interesting question in the current scheme. If someone has a mobileme account and keeps documents, etc. there, when a search is done on a computer at home that is connected to the net and hence to the mobileme account, is it valid to search the mobileme folders. Note that the documents are not on the local machine. If the machine were disconnected from the network, the data would be unavailable. Does authority to search the computer give authority to search a folder accessible from the computer but not physically at the location described?
8.18.2009 7:36pm
Ken Arromdee:
If the police execute a warrant in a way that reveals that it's just a pretext for something else, such as trying to extort information, a defense attorney can challenge the execution of the warrant as being in "flagrant disregard" of its terms.

But it's clearly possible that the pet was fed the stolen ring. Or for that matter, that the pet was fed a micro SD card that holds a copy of the document mentioned in the warrant. If this can be challenged as a pretext (even though it's quite possible to hide a document in that way), couldn't a search of every file on the computer be challenged as a pretext for a fishing expedition even though (likewise) it's always possible that the document is actually hidden that way?

Or to look at it from the other side, a micro SD card is really small and can be hidden just about anywhere. Can the cops therefore legally search anywhere when the warrant mentions a document?
8.18.2009 7:38pm
GeoBarto (www):
What if instead of kiddie porn, they'd found illegally downloaded MP3s - say 10 or 15 songs? How about 100 songs? What about a photograph that proved the guy went deer hunting out of season? Alex Kozinksi wrote a nice bit about how pretty much everyone has probably committed a federal crime at one point or another. He noted that fortunately, the police lack the manpower to investigate every last potential infraction while prosecutors must allocate limited resources to those cases that appear to be worth trying. So...

PatHMV asks:UID... what is the policy reason for imposing greater limitations on searching a computer than searching traditional paper files in the man's house?

Answer: Searching paper files takes time, thus discouraging police departments with limited resources from going on fishing expeditions. Searching computers is easier and faster, so that the balance between excessive laws and limited law enforcement resources is thrown off kilter.
8.18.2009 7:51pm
Laura(southernxyl) (mail) (www):
I don't get all the talk about pet evisceration because somebody might or might not have done something. Or cactus evisceration, either.

They were looking for financial records. Where are financial records kept? In a filing cabinet, a shoebox under the bed, stacked untidily on a tabletop, or on a computer. It's not that far-fetched, and clicking on a file is not the same as ripping open a pet hamster, not even close.

Even though IANAL, I actually remember talking about this in my civics class in high school, in about 1977 or '78, in a podunk town in Mississippi. My teacher was Mr. Horton. We discussed the elephant in the matchbox analogy, as I recall - if you have a warrant to look for a specific thing, you can only look in places where a reasonable person might think that thing could be. Evidently, that is actually the law - thanks, Mr. Horton!

And I remember people in my high school class trying to twist and push that around, as teenagers will. Seems like it's human nature of a certain kind that will try to find a way that a man could have illegal child porn on his computer and no legal way that a policeman could do anything about it. Hamsters ripped open, indeed.
8.18.2009 7:54pm
OrinKerr:
PFP writes:
I pick up your pen. You say "give it back." I say "no." I have seized your pen. Later I may take it away with me, or I may hand it back, but at that point it's seized.
I am not entirely sure how this is relevant to Payton, though as the police did not take the computer away. Perhaps there would have been a seizure if Payton had tried to interfere: at that point, they would have seized Payon by forcing him not to interfere, either through handcuffing him or whatnot. But the Supreme Court has permitted that sort of seizure as an incident to the execution of a warrant outside the terms of the warrant itself.
8.18.2009 8:04pm
Dave N (mail):
I agree with Orin's analysis but I have to ask the (off-topic) question that really bugs me when I read cases like this:

Why was this case charged federally in the first place?

Yes, I know that possession of child pornography is a federal crime and yes, I know that the federal government has a compelling governmental interest in stamping it out. That isn't my point.

The State has similar interests and this case was a state investigation apparently thrown to the feds for the simple reason that Payton faced more federal time than state time.

If the feds aren't involved in the investigation, I have a real problem with the feds prosecuting the case.
8.18.2009 9:28pm
ArthurKirkland:
I hope someone retraces this episode to determine why the police obtained a search warrant for a location at which no drugs were find. Someone should have some explaining to do.
8.18.2009 9:35pm
J. Aldridge:
This whole case can be easily summed up under original meaning by simply stating the child pornography was not a discovery due to any issuance of a general warrant.

Easy. End of issue.
8.18.2009 9:54pm
OrinKerr:
J. Aldridge:
This whole case can be easily summed up under original meaning by simply stating the child pornography was not a discovery due to any issuance of a general warrant.

Easy. End of issue.
I don't know about that, but if you are a serious originalist, presumably you would simply note that the Fourth Amendment was originally to regulate the federal government nd not the state officers who executed the warrant here.
8.18.2009 10:30pm
J. Aldridge:
^^^ Yes, but aren't you a big fan of judicial incorporation?
8.18.2009 10:39pm
David Schwartz (mail):
Does a warrant to search a home for illegal weapons authorized strip-searching all the occupants?
8.18.2009 10:54pm
Jay:
It would really be helpful if some of Orin's critics/interlocutors would try to set forth the actual theoretical objections or alternative ideas they have, rather than trying to come up with increasingly far-fetched hypos and then acting like those hypos obviously illustrate (and prove the correctness of) whatever underlying point they're trying to make.
8.18.2009 11:06pm
David Schwartz (mail):
Jay: The fourth amendment requires reasonableness in the execution of the warrant as well as the issuance of it. If a search is objectively unreasonable and there are no extenuating circumstances, the police should stop and get an additional warrant. That's the principle.

There should be some reasonable balancing of the effort in searching, the inconvenience and damage caused by the search, and the realistic possibility that evidence authorized by the warrant will be found. If that test is failed, the warrant doesn't authorize the search.

So a routine warrant for illegal weapons doesn't authorize strip-searching all the occupants. If you saw some reason that would be necessary in one particular case, ask the judge for that additional authorization. If you saw something later that made you think that was appropriate, then go to a judge. But a routine weapons warrant doesn't leave strip searches to police discretion.

That's an unreasonable search.
8.18.2009 11:11pm
Christopher Cooke (mail):
Orin and Eyesay

I was reading about the San Jose police's search of the Hells' Angels' "offices" during which, the police killed some dogs found there. The Ninth Circuit held the killing of the animals could be unwarranted and that the officers were not entitled to dismissal of a Section 1983 claim based on qualified immunity. For the uninitiated, a "Section 1983" claim is a legal claim asserting that the plaintiff's federal constitutional rights were violated by someone acting under "color" of governmental authority; it is filed under 42 U.S.C. Section 1983, a federal statute that authorizes such lawsuits. Qualified immunity is a doctrine that affords protection from civil liability to certain "state" actors, such as police, who can show they had a good faith belief that their actions were lawful.
8.18.2009 11:59pm
James968 (mail):
One point also, is they were looking for financial records. According to the description the police officer double clicked on a file to open it.

Picture files are either identifiable by the Icon or by the description. So when the police officer double clicked on the file, there was a very high probability, he knew it WAS NOT a financial record. Which kinda means he was snooping.

(Unless of course the file had some label or was in a directory labelled Child Porn. (In which case the officer could argue they were proceeding on probable cause)).
8.19.2009 12:31am
Jay:
David Schwartz--
Ok, I get that as far as it goes (and I'm pretty sure that is actually the law; i.e., the police cannot strip search everyone on a premises based on a warrant to look for drugs). But are you saying that's analogous to the computer search in this case?

James968-- As multiple people pointed out above, it's possible to put to relabel files to conceal their actual nature until they're opened. So I'm not sure it would thereby be obvious a .jpg file contained no financial info.
8.19.2009 12:47am
David M. Nieporent (www):
Picture files are either identifiable by the Icon or by the description. So when the police officer double clicked on the file, there was a very high probability, he knew it WAS NOT a financial record. Which kinda means he was snooping.
"Snooping" is another word for "searching," which is of course what he was supposed to be doing.


James968-- As multiple people pointed out above, it's possible to put to relabel files to conceal their actual nature until they're opened. So I'm not sure it would thereby be obvious a .jpg file contained no financial info.
They don't even need to be "relabeled" for the purpose of concealment; if the documents are scanned in, they may end up as pictures rather than spreadsheets. (No, JPG isn't the right choice, but that doesn't mean it wouldn't happen.)
8.19.2009 1:59am
David Schwartz (mail):
Ok, I get that as far as it goes (and I'm pretty sure that is actually the law; i.e., the police cannot strip search everyone on a premises based on a warrant to look for drugs). But are you saying that's analogous to the computer search in this case?
Jay: I am not definitively taking that position with respect to the facts of this particular case, but I am saying it definitely cannot be dismissed out of hand. Otherwise, police will never ask for specific permission to search computers and judges will lose the opportunity to place reasonable limits on those searches.

To argue that an ordinary search warrant grants unlimited power to search a computer in any detail, so long as the place to be searched contains a computer and anything covered in the warrant could possibly exist on a computer, is outright absurd.

For one thing, the notions of "container" and "place" simply fail to apply to computers. You can double-click on an icon on my desktop and pull up documents from a computer that is 100 miles away.
8.19.2009 2:20am
UID:
After re-reading the facts given the original post, I suspect that Payton had a bunch of icons and shortcuts scattered across his Windows desktop. Officer mouses off screensaver, officer sees icon, officer clicks icon, officer discovers child porn.

Unlike most folders, the desktop does not display images as thumbnails by default. I'm guessing the officer did not recognize the Windows icon for JPEG files. (As no reasonable person would routinely begin a search for financial records by opening JPEGs.) Cue accidental discovery.

All of this leaves me wondering if the officer in question would be capable of recognizing files likely to contain financial records before opening them. I suspect not. Therefore, opening each and every file to visually see whether the contents look like financial records would be the only way said officer could conduct the search.

If the officer cannot distinguish between likely and unlikely files prior to opening them, then all files are equally suspect (but at a very low level of justifiability:

(A)there may be a file on the computer that contains financial records
(B)this is a computer file
(C) this file may contain financial records

If this is the case, the officer would have no reason to suspect (prior to opening it) that that particular file (more than any other) was a financial record. However, this equalized suspicion is only possible if we hypothesize computer unfamiliarity on the part of the officer. I certainly hope a judge would not condone a search by an officer where the only reasonable way to believe the file in question contained financial records would be through ignorance of what a suspicious file actually looks like.

I find it hard to imagine a more intrusive and inefficient way of conducting a search. In addition, such a search would be only marginally effective (and ineffective against many steganography techniques). Is it too much too ask that officers searching your computer have training enough to conduct an efficient, minimally-intrusive search (several methods were suggested in this thread) or even recognize common Windows icons? It would be child's play to write a program which could search for specific headers/extensions/text.
8.19.2009 2:49am
J. Aldridge:
Jay: The fourth amendment requires reasonableness in the execution of the warrant as well as the issuance of it. If a search is objectively unreasonable and there are no extenuating circumstances, the police should stop and get an additional warrant. That's the principle.

No its not the principal. The word "unreasonable" means unreasonable warrants as in "general warrants." The 4A is all about preventing the issuance of general warrants.

Searching someone at the place named in a warrant is a matter of local police policy.
8.19.2009 6:48am
David Schwartz (mail):
So you are seriously arguing that a warrant to search a location for illegal weapons leaves it to police discretion whether to strip search every single person in the house?
8.19.2009 8:07am
Laura(southernxyl) (mail) (www):
David, if a person in the house was wearing a loose shirt under which the outline of a sawed-off shotgun was clearly visible, would you be outraged if the cop asked the person to take the shirt off?
8.19.2009 8:48am
question from another viewpoint (mail):
I understand that the warrant has to specify the location to be searched, but not necessarily itimize the things (i.e. the kitchen would presumably include the fridge and cabinets, the living room would include the couch and end table, etc). Not itimizing those things, including a computer, I can understand.

But, I thought (perhaps ignorantly) that a warrant had to specify the items searched for. I suppose if you run into something illegal during an otherwise legal search that you weren't expecting, that would be fair game.

My concern (and the point of my comment) is that, according to the post, the warrant was for DRUGS and none-at-all were found. Doesn't that give anyone pause for a minute that whomever sought the warrant really was looking for the porn (which they did find) and not for drugs at all? Isn't it possible, under the "everything is fair game once you're inside" theory, to get warrants for things you don't intend to search for, when you're really wanting something else?

It just seems a little odd to me that while executing a search warrant for drugs, they found nothing except porn.
8.19.2009 10:04am
question from another viewpoint (mail):
Never mind, I think I found this answer in Orin's post at 5:55 p.m.

"If the police execute a warrant in a way that reveals that it's just a pretext for something else, such as trying to extort information, a defense attorney can challenge the execution of the warrant as being in "flagrant disregard" of its terms."
8.19.2009 10:12am
David M. Nieporent (www):
But, I thought (perhaps ignorantly) that a warrant had to specify the items searched for. I suppose if you run into something illegal during an otherwise legal search that you weren't expecting, that would be fair game.
Your thought was not ignorant, but correct -- and your second sentence is what happened here.
My concern (and the point of my comment) is that, according to the post, the warrant was for DRUGS and none-at-all were found. Doesn't that give anyone pause for a minute that whomever sought the warrant really was looking for the porn (which they did find) and not for drugs at all?
The search warrant was for "drugs, sales ledgers relating to drugs, and financial records for the person who lived in the home. They found the porn while looking for the financial records.

(Is it troubling that they found no drugs at all? Yes.)
Isn't it possible, under the "everything is fair game once you're inside" theory, to get warrants for things you don't intend to search for, when you're really wanting something else?
In theory, but remember that you need probable cause in order to get the warrants for those "things you don't intend to search for."
8.19.2009 10:46am
J. Aldridge:
But, I thought (perhaps ignorantly) that a warrant had to specify the items searched for. I suppose if you run into something illegal during an otherwise legal search that you weren't expecting, that would be fair game.

You are right. The 4A doesn't protect anyone from unlawful activity in front of a police officer. An officer executing a warrant has every right to be where the warrant says he should be and any activity he observes at the time is the same as if it had occurred in front of him on patrol.

This won't stop looney federal judges from holding otherwise since maybe 99% of them have no idea of the history behind the 4A and the states had surrendered their own bill of rights for the federal bill of rights (hahaha).
8.19.2009 10:53am
Michael Watts:
I've seen it come up twice in the comments and go unremarked each time-- how is the warrant's blanket license to search anything within the "place" reconciled with the computer's ability to display files from remote locations? It's easy to set up a "folder" accessible in the normal ways which is really a network connection to some other computer in an arbitrary place. I could even set it up such that opening the folder when the connection is inactive activates the connection. In the case where the cop initiates the connection to my server in Hong Kong, reads the files there, and arrests me for what they contain, has he really restricted himself to searching within my house? True, I've been careless about securing my server, possibly because I didn't expect my computer to be searched due to suspicions that somebody else in my house may have been dealing drugs. But the fact remains that in the course of executing a warrant to search my (roommate's) house, the police read private files stored several thousand miles away. Doesn't this turn a warrant for anywhere that might contain a computer into a warrant that allows searching anything, anywhere? Why not?
8.19.2009 11:35am
David M. Nieporent (www):
This won't stop looney federal judges from holding otherwise since maybe 99% of them have no idea of the history behind the 4A
That's right, but you do, because you've read a blog.
8.19.2009 12:36pm
J. Aldridge:
^^^ ZZZZzzzZZZzzzzZZZZzz
8.19.2009 12:56pm
Laura(southernxyl) (mail) (www):

(Is it troubling that they found no drugs at all? Yes.)


Would be interesting to know what percentage of the time the object of a search conducted with a warrant is found. Does anybody look at that on a local scale, I wonder, broken out by judge? Or at the percentage of warrants that get signed, broken out by judge?

I remember that during the OJ fiasco it was argued that the police should not have gone in without a search warrant. The police argued that they had probable cause to think that evidence was being destroyed. The phrase I kept hearing was "ten minutes on the phone with a judge" and they'd have had their warrant. Well, if you don't have probable cause to think that a crime is being committed in my house, I don't think "ten minutes on the phone with a judge" is sufficient to safeguard my fourth-amendment rights. In fact, I can't think of much of anything that ten minutes on the phone would accomplish.

But I have to think that once in a while even a properly executed warrant with all i's dotted and t's crossed isn't going to yield anything in a search.

As to computers linking to evidence stored off-site: This possibility is a new phenomenon and not anything that the writers of the fourth amendment or the vast majority of issuers of opinion about it could have ever anticipated. Since IANAL, I am free to exercise my common sense. The reason for looking at files on the computer is to find financial records related to drug dealing. Are the files I am supposed to look for definitely going to be located on that PC, or could they be elsewhere and accessible by that PC? Well, they could be elsewhere, of course. So once you've said that the cops can search, it would be an artificial restraint not making much sense to say that the cops can only look at the files located on the PC in the house where they have the warrant.
8.19.2009 1:09pm
OrinKerr:
David, J Aldridge -- Play nice.
8.19.2009 2:26pm
David Schwartz (mail):
Laura: No, because that's objectively reasonable.
8.19.2009 6:54pm
Laura(southernxyl) (mail) (www):
But if "under the shirt" is not listed in the warrant, it's still at the cop's discretion.

And what's objectively reasonable is clearly a subjective thing. For instance, I would think that looking at the files on the computer is objectively reasonable, but others evidently disagree.
8.19.2009 8:49pm
David Schwartz (mail):
Laura: I'll give the cops the benefit of the doubt in close cases. But in these situations, nothing stops them from preventing the evidence from being destroyed or tampered with and getting an additional warrant.

I think it's oxymoronic to argue that what's "objectively reasonable" is subjective. It's not difficult to balance the probability of finding relevant evidence against the intrusiveness and destructiveness of the search. And, again, I'm willing to cut the police a wide berth and only argue a violation when the behavior is objectively unreasonable.

Strip-searching every occupant of a house because a warrant authorized "illegal weapons or ammunition" is objectively unreasonable, even though ammunition could, potentially, be hidden in someone's rectum. If there was specific reason to think evidence might be found there, that's another story.

The point is for judges to make the decision of the scope of the search, not the cops. And "any containers in the place to be searched" just doesn't make sense.

And, again, I'm not saying the present case shows an unreasonable search. Just that it's not as simple as arguing that it's reasonable to search any "container" in the place to be searched in any way, regardless of how unexpectedly (to the judge) intrusive or destructive it might be.

The point is for the police to execute the warrant more or less the way the judge imagined it. (Absent, of course, unexpected circumstances which will naturally require unexpected responses.)
8.19.2009 9:28pm
Laura(southernxyl) (mail) (www):
"The point is for the police to execute the warrant more or less the way the judge imagined it."

Looks to me like you are asking the police to read the judge's mind. Not to mention, the policeman is in the house seeing things that the judge is not seeing and possibly didn't anticipate.

And I don't equate strip-searching everyone in the house with clicking a button on a mouse, do you?
8.19.2009 9:36pm
David Schwartz (mail):
If the police want to avoid having to read the judges mind, all they have to do is describe what they plan to do in the warrant application. In any event, coming to a mutual understanding doesn't require mind reading. If it did, the whole system or warrants would be a pointless exercise.

I don't equate strip-searching everyone in the house with clicking a button on a mouse. I only use that to refute the argument that *any* search of containers (regardless of how intrusive or destructive) that could contain the evidence described in the warrant and are located in the area described by the warrant is reasonable.

I'm not sure what we're disagreeing about. Do you now agree that a strip-search for weapons, absent unusual circumstances, would be an objectively unreasonable search? And if so, what do you think is the principle that leads to that conclusion?

I said that I am not asserting that this principle obviously renders the search in this case unreasonable.
8.19.2009 10:19pm
Michael Watts:
OK, here are some scenarios to try to draw a more precise line:

(1) The police get a warrant to search my house for financial records. They never approach it, but they do, from the police station, look through my Google Docs account (say they guessed my password). Is this allowed by the warrant?

(2) The police get a warrant to search my house for financial records. In the process of searching my computer, they open a web browser and go to Google Docs, where my google cookie logs them into my account automatically. They search through those records.

(3) The police get a warrant, etc. In searching my computer, they open a web browser and go to Google Docs, where they're asked for login credentials. They enter the credentials taped to the bottom of my monitor, which happen to be correct, and search through my google docs.

(4) The police get a warrant, etc. They see a shortcut to Google Docs on my desktop. They use that and, as before, my cookie logs them in. Is this arguably more "in plain view" than the earlier examples?

(5) Warrant, etc. On booting my previously off computer, the police are met with a login screen. They ask for my password, which, for whatever reason, I give them. (Can they compel that?) In the course of searching, they open a web browser and go to Google Docs, where they're asked for login credentials. Without asking me, they enter the same credentials used to log in to the computer. That works, and they search my google docs.

What's the important difference between scenarios (1) and (5)? My Google Docs account is not associated with my computer in any way (other than that you can use any computer, including mine, to access it), even though it's reasonably likely to contain financial records. In the examples where I've kept a cookie, there is an association, but I'm deeply uncomfortable with the method, as it amounts to issuing a warrant not to search someone's house but to impersonate their credentials to a third party.
8.19.2009 11:05pm
Michael Watts:
I can't believe I forgot this one:

(6) While searching my (already on) computer, the police find a web browser already logged into Google Docs. They search the documents.

Is that one allowed? If so, what are the principles (if any) distinguishing it from the other five?
8.19.2009 11:22pm
Laura(southernxyl) (mail) (www):

I'm not sure what we're disagreeing about. Do you now agree that a strip-search for weapons, absent unusual circumstances, would be an objectively unreasonable search?


No. I thought that strip-searching everyone was brought up because it was thought to be analogous to searching that computer.

Michael, I think scenario 1 would require a different warrant than a house-search. It doesn't make reasonable sense that it would, so clearly the law needs to catch up to technology ASAP.

I don't think you can be compelled to give your password - I think they could ask but you don't have to give it. 5th A, right? But if it's taped onto your monitor, that's not different from having the key to your filing cabinet taped onto the front of it.

I understand your concern about impersonating credentials. If the person being searched had material in a nonvirtual offsite storage facility, and the police had a warrant to search that, they could show their warrant and ID and get in. They can't do that with Google docs, unless we want to give the government a backdoor to get into any online password-protected stuff they want, and I REALLY don't think we want to do that. So the alternative would be to consider Google docs to be a kind of offsite storage, which nevertheless is accessed from within the place listed by the warrant and is searchable from there under the scenarios you describe. Or another alternative would be to say that Google docs and other things of that type are "home free" for any kind of contraband a person wants to keep, and that seems kind of counterproductive too.
8.20.2009 7:49am
Soronel Haetir (mail):
I thought materials handed over to a third party already enjoyed less protection. Wouldn't it simply require a subpoena? Sure it's a little more work, but the google docs storage is likely recoverable with a lower showing than that required for the warrant to begin with.
8.20.2009 8:28am

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