The Ninth Circuit has been handing down a boatload of cases applying the Fourth Amendment to computers recently, and today handed down another important case.
In United States v. Hill, the Ninth Circuit (Fisher, joined by Goodwin and Schroeder) created a new constitutional rule for the execution of computer searches. It imposed as a constitutional requirement a prudential practice that DOJ has been recommending for years: Articulating in the affidavit why computers need to be taken offsite rather than searched onsite. The Ninth Circuit had hinted that this might be a good idea in a 1982 case involving boxes of documents, United States v. Tamura, but then turned it into a constitutional rule today. Here’s the excerpt:
Although computer technology may in theory justify blanket seizures * * * , the government must still demonstrate to the magistrate factually why such a broad search and seizure authority is reasonable in the case at hand. There may well be situations where the government has no basis for believing that a computer search would involve the kind of technological problems that would make an immediate onsite search and selective removal of relevant evidence impracticable. Thus, there must be some threshold showing before the government may “seize the haystack to look for the needle.”
* * * [A]lthough the warrant in this case authorized a wholesale seizure, the supporting affidavit did not explain why such a seizure was necessary. See United States v. Adjani, ___ F.3d at ___ , 2006 WL 1889946 at *7 n.7 (noting favorably an affidavit’s computer search and seizure protocol explaining when a computer had to be searched offsite, because “[s]uch specificity increases our confidence that the magistrate judge was well aware of what he was authorizing and that the agents knew the bounds of their authority in executing the search”); U.S. Dep’t of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 43, 69 (July 2002) (recommending that “if agents expect that they may need to seize a personal computer and search it off-site to recover the relevant evidence, the affidavit should explain this expectation and its basis to the magistrate judge. The affidavit should inform the court of the practical limitations of conducting an on-site search, and should articulate the plan to remove the entire computer from the site if it becomes necessary.”);* * *
We do not approve of issuing warrants authorizing blanket removal of all computer storage media for later examination when there is no affidavit giving a reasonable explanation, * * * as to why a wholesale seizure is necessary.
This is fascinating. I’ve always thought this was a good practice (full disclosure: I wrote the DOJ manual cited in the passage), but this is new as a constitutional rule. It’s also worth noting something a bit strange: Hill is a child pornography case, in which the computer (if it contains contraband images) is itself an instrumentality of crime and independently forfeitable. Thus the Ninth Circuit seems to be requiring agents to explain why they can’t search the computer onsite to identify whether it is in fact legally seizable. In other words, the agents need to explain why they can’t confirm that the computer hardware is indeed legally seizable before they actually seize it. This is a bit different from prior cases like Tamura, where the concern was carting away documents unrelated to the offense.
Notably, however, the Hill court opted not to impose a suppression remedy in this case:
[T]he officers’ wholesale seizure was flawed here because they failed to justify it to the magistrate, not because they acted unreasonably or improperly in executing the warrant. Because the officers were “motivated by considerations of practicality rather than by a desire to engage in indiscriminate ‘fishing,’ we cannot say . . . that the officers so abused the warrant’s authority that the otherwise valid warrant was transformed into a general one, thereby requiring all fruits to be suppressed.” [citing Tamura]. See also Hudson v. Michigan, 547 U.S. ____, 126 S.Ct. 2159, 2163 (2006) (“Suppression of evidence . . . has always been our last resort, not our first impulse,”and is appropriate “only ‘where its remedial objectives are thought most efficaciously served.’” (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).
Based on the quotation from Tamura, it seems that the Hill court is applying the flagrant disregard standard here. Under the flagrant disregard standard, the court will only suppress evidence within the scope of a facially proper warrantif the warrant was executed in flagrant disgregard of its terms. This creates a puzzle, though: if the standard for reviewing the failure to explain the issue in the affidavit is only the usual flagrant disregard standard, is this essentially a right without a remedy? The cite to Hudson suggests this might be so; perhaps the court is essentially saying that this is a requirement now, but not one that leads to suppression if he government fails to comply with it (much like the knock and announce rule).
If so, the court is essentially creating an amendment to the Federal Rules of Criminal Procedure in the case of computer searches; the rule is that seize-first, search-second warrants require an explanation, although suppression generally isn’t available as a remedy if the magistrate approves a warrant without that explanation. I suspect this will have a ripple effect in the pending cases out there: every defendant in a computer search case is going to litigate this, and courts are going to have a lot of opportunities to explore the issue.
Finally, it’s interesting to note that the Court concluded with this suggestion of more interesting developments ahead:
We realize that judicial decisions regarding the application of the Fourth Amendment to computer-related searches may be of limited longevity. Technology is rapidly evolving and the concept of what is reasonable for Fourth Amendment purposes will likewise have to evolve. See Kyllo v. United States, 533 U.S. 27, 33-34 (2001) (“It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”); cf. id. at 41, 51 (Stevens, J., dissenting) (expressing concern with “the supposedly ‘bright-line rule’ the Court has created in response to its concerns about future technological developments” as it “is unnecessary, unwise, and inconsistent with the Fourth Amendment” and commenting that “[i]t would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues [of technology] rather than to shackle them with prematurely devised constitutional constraints”). New technology may become readily accessible, for example, to enable more efficient or pinpointed searches of computer data, or to facilitate onsite searches. If so, we may be called upon to reexamine the technological rationales that underpin our Fourth Amendment jurisprudence in this technology-sensitive area of the law.
Changing Fourth Amendment rules? Reexamining rationales? Letting legislators get the first crack at these issues? Sounds like an interesting area for legal scholarship.
Thanks to How Appealing for the link.