M.D.Fla.: Search protocol not needed for this CP search warrant

In a child pornography search warrant, the warrant did not lack particularity for lack of computer search protocol. In addition, the same argument was made in virtually same warrant in another child porn case, and that case is noted. United States v. Brooks, 2013 U.S. Dist. LEXIS 184252 (M.D. Fla. October 18, 2013):

Further, the warrant did not lack particularity due to the absence of a computer search protocol or methodology. See Richards, 659 F.3d at 538 (“[G]iven the unique problem encountered in computer searches, and the practical difficulties inherent in implementing universal search methodologies, the majority of federal courts have eschewed the use of a specific search protocol …”); United States v. Burgess, 576 F.3d 1078, 1093-94 (10th Cir. 2009) (“It is unrealistic to expect a warrant to prospectively restrict the scope of a search by directory, filename or extension or to attempt to structure search methods – that process must remain dynamic. … [I]t is folly for a search warrant to attempt to structure the mechanics of the search and a warrant imposing such limits would unduly restrict legitimate search objectives.”); United States v. Khanani, 502 F.3d 1281, 1290 (11th Cir. 2007) (rejecting defendants’ argument that “the lack of a written ‘search protocol’ required the district court to suppress all evidence agents seized as a result of the search of the defendants’ computers”); United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005) (“This court has never required warrants to contain a particularized computer search strategy.”); United States v. Maali, 346 F. Supp. 2d 1226, 1245 (M.D. Fla. 2004) (“[T]he lack of a detailed computer ‘search strategy’ does not render the warrant deficient as to the search and seizure of computers.”).19

The particularity requirement of the Fourth Amendment was satisfied here with regard to the computer-related items because the warrant identified the types of property authorized to be seized and indicated the crimes involved for which evidence was sought. Cf. United States v. Riccardi, 405 F.3d 852, 862-63 (10th Cir. 2005) (“Our case law therefore suggests that warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of materials. The warrant in this case was not limited to any particular files, or to any particular federal crime. … By its terms, the warrant thus permitted the officers to search for anything – from child pornography to tax returns to private correspondence.” (internal citations omitted)). The warrant in this case limited the search to computer equipment, digital storage devices, and accessories that could contain contraband and evidence linked to the child pornography offenses specified in the warrant. See United States v. Gabel, No. 10-60168, 2010 U.S. Dist. LEXIS 107131, 2010 WL 3927697, at *10 (S.D. Fla. Sept. 16, 2010) (unpublished report and recommendation) (holding search warrant satisfied particularity requirement when it limited search to computers, digital storage devices, accessories, and other materials that could contain child pornography), adopted, 2010 U.S. Dist. LEXIS 107129, 2010 WL 3894134 (Oct. 4, 2010) (unpublished), aff’d, 470 Fed. Appx. 853 (11th Cir. 2012). The warrant supplied enough information “to guide and control the agent’s judgment in selecting what to take.” Upham, 168 F.3d at 535. The search was carried out in a controlled manner, not in flagrant disregard for the limitations of the warrant. See Richards, 659 F.3d at 541-42 (holding warrant that authorized search of computer servers for evidence of child pornography was not unconstitutionally overbroad and considering the fact that there was no actual claim that the search process was abused by the federal agents); Grimmett, 439 F.3d at 1270 (“There is no evidence of exploratory rummaging through files, or inadvertent discoveries. No wholesale searching occurred here, despite the broad authority the warrant may have granted.” (internal citations omitted)).

The warrant also authorized the search for and seizure of items “demonstrating an interest in the exploitation of children” that may or may not have been stored in a computer. Gov.’s Ex. 2 at 3 ¶ 9. Those items included “pictures, films, video tapes, magazines, negatives, photographs, correspondence, mailing lists, books, and tape recordings, ‘trophies,’ [and] grooming aids[.]” Id.; see also id. at 3 ¶ 8 (listing “[c]orrespondence or other documents (whether digital or written) pertaining to the possession, receipt, origin or distribution of images involving the sexual exploitation of children”). The Detectives, however, explained in the affidavit their basis for seeking to search for and seize those types of items: …