Computer search under warrant was overbroad

In a rare occurrence in the realm of computer searches, a court holds that a computer hard drive seizure was overbroad and the good faith exception was inapplicable. The government obtained a search warrant for the hard drives of any computers on defendant’s ship seeking to prove unlawful discharge from the bilge, but the warrant was deemed overbroad because the hard drives were mirror imaged and completely searched, and not just for discharge information. The corporate owner of a ship had standing to challenge search of computers on the ship. United States v. Fleet Management, Inc., 521 F. Supp. 2d 436 (E.D. Pa. 2007):

In the instant case, unlike the situation in Christine or Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, the warrant at issue did not describe in “specific and inclusive generic terms” what was to be seized, and did “vest the executing officers with ‘unbridled discretion’ to search for and seize whatever they wished.” Id. Indeed, the warrant authorized the seizure of “any and all data” from the three seized computers, “including, but not limited to” certain types of data relating to the Ship’s “operation, engineering, maintenance, pollution control equipment, navigational charts, and crew.” (See Attach. B to the Warrant Appl.) (emphasis added). It therefore placed absolutely no limitation on the data to be seized and “vest[ed] the executing officers with unbridled discretion to conduct an exploratory rummaging through [defendants’] papers in search of criminal evidence.” Christine, 687 F.2d at 753. Given the lack of guidance in the warrant itself, it is not surprising that the officer who conducted the forensic analysis of the computer hard drives relied only on the list of search terms that were provided to him. (9/24/07 N.T. (Fehrman) at 204-06, 213.) Meanwhile, the search terms, while primarily geared toward obtaining information about overboard discharges of waste, do not derive that focus from the general warrant, which contains no reference to overboard discharges. As such, it is plain that the executing officers exercised total discretion in the search, making their own determinations as to what they would seize from the hard drives, without any actual judicial control.

The Government asks that we focus on the particularity with which Attachment A to the warrant application identifies the three computer hard drives themselves, and emphasizes that the warrant clarifies the “any and all data” language by following it with the phrase “including, but not limited to [data] relating to the ship’s operation, engineering, maintenance, pollution control equipment, navigational charts, and crew.” We do not find these arguments persuasive. First, it is plainly insufficient to identify the computer hard drives with particularity as the hard drives were merely the property to be searched, not the properly to be seized. As the Fourth Amendment makes clear, a warrant must identify with particularity both the property to be searched and the property to be seized, and here, it is the description of the property to be seized that is at issue. See U.S. Const. amend. IV (requiring warrants to “particularly describ[e] the place to be searched, and the persons or things to be seized”).

Second, we find that the warrant’s “including, but not limited to” clause does not add particularity to the otherwise general warrant as it, by its own terms, imposes no limitation on the data to be seized. While the Government argues that “the warrant describes the data to be seized as relating to the ship’s operation, engineering, maintenance, pollution control equipment, navigational charts, and crew,” that is simply not the case. (Gov’t Mem. at 29.) Rather, as stated above, the warrant describes the data to be seized as “any and all data in the computers … including, but not limited to” the general categories of data referenced by the Government. As such, it merely lists those general categories of data as types of data that are necessarily included in the broad seizure power. Thus, in actuality, the warrant placed no restriction on the data that the Government could seize from the hard drives.

. . .

The Government contends that even in the face of a facial deficiency, the good faith exception can apply unless the facial deficiency “was so obvious that a law enforcement officer, without legal training, should have realized, upon reading the warrant, that it was invalid and should thus have declined to execute it.” Ninety-Two Thousand Four Hundred Twenty-Two Dollars, 307 F.3d at 146. However, “[g]iven that the particularity requirement is set forth in the test of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid.” Groh, 540 U.S. at 563 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)). The warrant here plainly did not comply with the particularity requirement, because it did not limit the scope of the officers’ search in any way, and we are confident that it would not take legal training for an officer trained in law enforcement to recognize as much. Accordingly, we find that the good faith exception simply cannot apply here.

Comment:I predict that the government will appeal this ruling. As I said, it is a rare occurrence that a court actually applies the particularity clause to a computer search. No area of the law is more prone to abuse by the courts and police than particularity and computer searches. But that’s just my opinion.