CA9: Applying a functional reasonableness analysis, the 21 day delay in getting a SW after computer seizure was reasonable

In a child pornography case, defendant’s computer was held for 21 days before a search warrant was obtained, and he moved to suppress. On the totality, the court finds the delay reasonable and did not substantially interfere with defendant’s possessory interest. He was in jail on a parole violation and wouldn’t be using it anyway, so his possessory interest was actually minimal. United States v. Sullivan, 2014 U.S. App. LEXIS 9800 (9th Cir. May 28, 2014), withdrawn, sub. op. on rehearing 2015 U.S. App. LEXIS 13702 (9th Cir. July 29, 2015):

In applying this balancing test to the seizure of Sullivan’s laptop, we start by considering the extent of the intrusion on Sullivan’s possessory interests given the totality of the circumstances. We conclude they were minimal. During the entire time period when the laptop was retained by the government, Sullivan was in custody on eight parole violation charges. He does not claim that he could have made use of the laptop while incarcerated or that he sought return of his laptop to himself or a third party. Where individuals are incarcerated and cannot make use of seized property, their possessory interest in that property is reduced. See United States v. Segura, 468 U.S. 796, 813 (1984) (Burger, C.J.) (plurality opinion) (holding that defendants’ possessory interests in their apartment were “virtually nonexistent” when they “were under arrest and in the custody of the police throughout the entire period the agents occupied the apartment”); see also United States v. Clutter, 674 F.3d 980, 984-85 (8th Cir. 2012) (determining that when defendant was in jail at the time of the seizure of his computer, the seizure “did not meaningfully interfere with his possessory interests”). Moreover, an individual who did “not even allege[], much less prove[], that the delay in the search of packages adversely affected legitimate interests protected by the Fourth Amendment” and “never sought return of the property” has not made a sufficient showing that the delay was unreasonable. United States v. Johns, 469 U.S. 478, 487 (1985).

Further, several of the factors that reduce an individual’s possessory interest applied here. Some seventeen days after his laptop was seized, Sullivan gave his express consent to the search of his laptop, and indeed urged the police officers to review videos stored on the laptop, claiming they contained exculpatory evidence. Because such consent “requires voluntary tender of property,” Stabile, 633 F.3d at 235, it further vitiates his claim that any possessory interest was infringed. Moreover, because Sullivan was a parolee subject to a consent condition for seizure, his possessory interest in the laptop was reduced. Cf. Samson, 547 U.S. at 850; United States v. Knights, 534 U.S. 112, 119 (2001). Under these circumstances, “[t]he actual interference” with Sullivan’s possessory interests was minimal. See Segura, 468 U.S. at 813 (Burger, C.J.) (plurality opinion).

We next consider the degree to which the seizure and retention of the laptop was necessary for the promotion of legitimate governmental interests. Place, 462 U.S. at 703-04. The state “has an overwhelming interest in supervising parolees because parolees … are more likely to commit future criminal offenses.” Samson, 547 U.S. at 853 (internal quotation marks omitted). Moreover, under the circumstances of this case, the government had a reasonable basis for retaining and searching the laptop based on the likelihood that it contained evidence of Sullivan’s parole violations, as well as child pornography. Because the parole officers who initially seized the laptop from Sullivan’s vehicle did not have the capability to perform a forensic search, they transferred it to the Berkeley police. The Berkeley police then obtained Sullivan’s consent to the search of the laptop and also sought a search warrant.