Up periscope

FLETC’s The Informer is out for this month. In addition to commentary on Ventris and Gant, here are a couple of summaries of two computer search cases.

10th CIRCUIT United States v. Otero, 2009 U.S. App. LEXIS 9001, April 28, 2009.

The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and accordingly makes the Fourth Amendment particularity requirement that much more important. A warrant authorizing a search of “any and all information and/or data” stored on a computer is the sort of wide-ranging search that fails to satisfy the particularity requirement. Warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.

11th CIRCUIT United States v. Mitchell, 2009 U.S. App. LEXIS 8258, April 22, 2009.

A seizure of a computer based on probable cause is unconstitutional if the police act with unreasonable delay in securing a warrant. 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 (21 days) before a warrant was sought constitutes a significant interference with possessory interest. The purpose of securing a search warrant soon after a suspect is dispossessed of a closed container reasonably believed to contain contraband is to ensure its prompt return should the search reveal no such incriminating evidence, for in that event the government would be obligated to return the container (unless it had some other evidentiary value). This consideration applies with even greater force to the hard drive of a computer, which is the digital equivalent of its owner’s home, capable of holding a universe of private information.

Not sure if these cases are helpful but, it’s worth looking for ways to challenge the general warrant nature of computer searches disguised as particular.