Key word search on a computer helps prevent digital rummaging

A software copyright infringement case permitted a search of computers, despite defendant’s argument it was the digital equivalent of rummaging. The officer’s intent to use a key word search to prevent rummaging was determinative. United States v. Bhownath, 2007 U.S. Dist. LEXIS 65320 (D. Utah August 31, 2007):

Bhownath contends that the warrants language allowed the agents to search for and seize a limitless array of computer files, not just those relating to the alleged crime. Bhownath relies on a Tenth Circuit case stating that “[a] sufficiently particular warrant [is such] that the officer is prevented from generally rummaging through a person’s belongings.” United States v. Patterson, 64 Fed. Appx. 727, 729 (10th Cir. 2003).

The warrant in this case allowed the agents to search all the data contained on Bhownath’s computer. The court disagrees with Bhownath, however, that this is the digital era equivalent of rummaging. The agents must be allowed access to all files on a computer to search for files and folders relating to the case. The agents do so by searching all files for keywords. They then look at the files and folders that contain those keywords. The agents do not conduct a search by opening the first file, reading it, and then moving to the next. Searches of a computer are methodically done on an imaged hard drive.

Bhownath’s position would unnecessarily curtail the search for keywords in any file on the computer. The agents are not in a position to know what type of file or folder a defendant may use to store relevant information. If the court were to find the warrant facially overbroad, it would allow defendants to hide evidence of illegal conduct in unlikely places on their computer and escape the parameters of a warrant. Such a position is unworkable and unnecessarily limiting in the context of a computer search in a case such as this where a defendant is selling illegal products from a website associated with his home address and shipping products through an address associated with his home address. There was probable cause to search the computers at the address associated with the website. Given the facts presented in the affidavit, the computer at the residence was the most relevant source for information relating to the alleged crime. Therefore, the court concludes that the warrant was not facially overbroad with respect to the search of Bhownath’s computer.

Defendant’s consent to a patdown that led to his trying to avoid having his pockets touched was not a true withdrawal of consent, but he did withdraw, after a plain feel revealed constraband. State v. Cochran, 2007 Ohio 4492, 2007 Ohio App. LEXIS 4050 (3d Dist. September 4, 2007).*

Consent to a BAC test is implied in Texas from operating a motor vehicle, and it can be ineffective if the defendant is misadvised of the consequences of refusal. Defendant was subject to arrest, but he was not told, and it was apparent to him that he was restrained and not free to leave. He volunteered he’d been drinking, and that, coupled with his conduct and demeanor, showed probable cause to believe he was under the influence. Washburn v. State, 235 S.W.3d 346 (Tex. App.—Texarkana 2007).*