Computer search in a homicide case was challenged for overbreadth but not for lack of probable cause, and it failed

(Sorry for the delay in posting, but I had an early drive for court that turned out to be a complete waste of time, and I had to e-file a pleading tonight that I’ve been working on for three days.)

The Texas Third District Court of Appeals at Austin sustained a computer search in a strangulation murder case where the appellant conceded probable cause and only challenged exceeding the scope of the warrant. Russo v. State, 228 S.W.3d 779 (Tex. App. — Austin 2007). The opinion is interesting if only for those interested in computer searches. The police had a search warrant for the computer and found information that appellant had visited a subscription website named www.necrobabes.com which the state contended dealt with strangulation death. [I visited the website, and it describes itself as “erotic humor for men” and has a disclaimer, including: “These sites deal with very politically incorrect fantasies. If you do not have these sorts of fantasies, you will likely find them shocking, if not offensive–our sites are not for you, please go away.” It has links for posed death scenes including asphyxia.] The police thought this was relevant to the strangulation investigation. The court found the searches valid, and the evidence relevant.

Appellant does not complain of the admission of all the evidence taken from his computer. Further, he does not challenge the probable cause underlying the search warrant issued June 18, 2003, and under which the computer was seized. He urges that the execution of the search of the computer’s contents exceeded its scope with the search of a computer file relating to “necrobabes.com.” It is argued that the search should have been limited to the computer’s contents involving real estate as authorized by the search warrant of June 18, 2003.

Another search warrant was issued on November 18, 2003, expressly authorizing the search of the “necrobabes.com” computer file. It does not appear that appellant challenges the validity of this warrant or its execution. The State contends that the evidence shows that the computer file in question was not itself searched until after the issuance of the search warrant on November 18, 2003.

The essence of appellant’s complaint is that the police exceeded the scope of the search under the June 18 warrant when the police “used” information that they learned from the computer’s Internet history to “discover private information on appellant’s computer.” On appeal, appellant simply states: “[A]ppellant’s objections and argument are located at R. Vol. 9, 4-5, 75, 81 [pretrial]; R. Vol. 37, 205.” 15 Detective Roy Rector, a forensic computer examiner with the Austin Police Department, first made a copy of the computer’s hard drive, which is protocol for forensic computer examination. Rector examined the computer with a program called “Encase,” which is designed to recover any data located on a hard drive, whether it is an active computer file or a previously deleted file. Rector then performed some keyword searches on the hard drive copy using “Diane Holik,” “Pathfinder,” and “Lakki Brown” (Holik’s realtor). There were no positive hits on these terms. Rector was then requested by a prosecutor to conduct a more thorough search to look for Internet activity related to real estate.

Officer was performing community caretaking function for entering business premises that was months behind on lease payments because the landlord was afraid of who or what he may encounter. The entry was on behalf of the landlord who had a right of entry, not the tenant. State v. Albaugh, 2007 ND 86, 732 N.W.2d 712 (2007):

[*P13] The essential inquiry is whether Zeeb had the right to enter the shop. The district court found “Officer Zeeb entered the premises through an open and unlocked door at the request of the landlord. …” (Emphasis added). By the tenant’s concession and the terms of the lease, the landlord had the right to enter the shop. The tenant, Albaugh’s brother, testified he was three months behind in rent and acknowledged the landlord had the right of entry if he defaulted on the terms of the lease. The landlord was the individual for whom Zeeb was performing the community caretaker function. The landlord requested Zeeb to be present in case he encountered a tenant or problems arose. Officer Zeeb had a reasonable belief that the shop was expected to be empty and in the event the landlord encountered someone in the shop, his assistance would be needed. Zeeb waited outside the shop, which, according to Detective Berg, was “a public business,” with one door “apparently for public access to what appeared to be a public business.”