Cal.1st: Govt search of computer exceeded prior private search

The government search of defendant’s computer here exceeded the private search, going into the container within a container rationale. People v. Evans, 2014 Cal. App. LEXIS 887 (1st Dist. October 3, 2014):

Noting that a “container” has been defined as “‘any object capable of holding another object,'” the United States Supreme Court has recently observed that “[t]reating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. [Citation]. But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. [This] is what cell phones, with increasing frequency, are designed to do by taking advantage of ‘cloud computing.’ Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference. [Citation.]” (Riley v. California (2014) ___ U.S. ___, 134 S.Ct. 2473, 2491 (Riley), quoting New York v. Belton (1981) 453 U.S.454, 460, fn. 4.) The Court further stated: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life” [citation]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” (Riley, at pp. 2494-2495.)

Because, as the Supreme Court observed, cell phones “are in fact minicomputers” (Riley, supra, 134 S.Ct. at p. 2489), and the search of a computer hard drive implicates at least the same privacy concerns as those implicated by the search of a cell phone, there is no reason to think conventional computers can any more reasonably be characterized as containers than cell phones. Indeed, “[c]omputers are relied upon heavily for personal and business use. Individuals may store personal letters, e-mails, financial information, passwords, family photos, and countless other items of a personal nature in electronic form on their computer hard drives.” (United States v. Mitchell (11th Cir. 2009) 565 F.3d 1347, 1351, 1352 [describing “the hard drive of a computer, which ‘is the digital equivalent of its owner’s home, [as] capable of holding a universe of private information'”].)

The Supreme Court’s analysis in Riley highlights the dangers inherent in lawyers and judges cavalierly applying established legal theories to new technologies, without carefully exploring the factual differences between such technologies and the objects traditionally found appropriate for those theories’ application. (See Riley, supra, 134 S.Ct. at p. 2491.) As the Tenth Circuit Court of Appeals has observed: “‘Since electronic storage is likely to contain a greater quantity and variety of information than any previous storage method, … [r]elying on analogies to closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.’ [Citation.]” (United States v. Carey (10th Cir. 1999) 172 F.3d 1268, 1275; see also Lessig, The Path of Cyberlaw (1995) 104 Yale L.J. 1743, 1752 [urging courts to “follow the meandering development of the common law” before “venturing too boldly” into the regulation of cyberspace].)

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The notions the trial court relied upon—that Statham initially “believe[d] in good faith that he had discovered pornography,” and that appellant was, in effect, “‘hanging his dirty laundry out to dry’ by handing it over to a third party he knew was going to look at it”—beg the central question pertinent to the scope of Statham’s private search: whether it frustrated appellant’s subjective expectation in the privacy of the materials searched and seized by the government in this case. As we have explained, Statham’s search did not frustrate that expectation of privacy, which is clearly one society recognizes as reasonable.