N.D.Ind.: Incorporation of affidavit saves a general warrant for computers and a Facebook account

Defendant’s Facebook post “involved in to kill public officials and destroy government buildings,” including the obligatory disclaimer of exercising free speech rights, led to three search warrants. The warrant was for computers and electronics but it didn’t specify what the officers were looking for. The affidavit was referenced, however, and that led the court to conclude that the warrant was sufficient by incorporating the offenses mentioned in the affidavit. The good faith exception also applied. United States v. Bradbury, 2015 U.S. Dist. LEXIS 76849 (N.D.Ind. June 15, 2015):

The police had probable cause to search Bradbury’s residence and Facebook account for evidence relating to his threat to blow up the courthouse and kill law enforcement officers. But neither warrant limited the scope of the search officers could conduct to evidence related to this, or any other, crime. The Residence Warrant authorized the search and seizure of “CELL PHONES, COMPUTERS, TABLETS OR ANY OTHER ITEM CAPABLE OF INTERNET CONNECTION,” as well as firearms, bombs and bomb-making materials. [DE 55-1.] The Facebook Warrant contained a reference to “Threats toward Law Enforcement” but nevertheless authorized the search and seizure of all of Bradbury’s account information within a date range. [DE 69-2.]

This is a problem. On their face, the Residence and Facebook warrants authorize precisely the type of “exploratory rummaging” the Fourth Amendment protects against. The warrants gave the police the ability to search for evidence of any crime that could potentially be found on Bradbury’s computer. As another court has recognized, the ability of computers “to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and accordingly makes the particularity requirement that much more important.” United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009). Say, for example, Bradbury had tax returns or bank statements stored on his hard drive. The Residence Warrant would allow the police to scrutinize those records for evidence of, say, tax fraud even though there was no probable cause to support such a search. Or say Bradbury had uploaded photos to his Facebook account. Armed with the Facebook Warrant, officers could scrutinize those pictures for evidence of illegal drug use.

That type of exploratory search would obviously be inappropriate. See Mann, 592 F.3d at 784 (holding a police officer exceeded the scope of warrant to search computer for evidence of voyeurism when he began searching for evidence of child pornography). In order to ensure that the scope of a search is confined to evidence relating to a specific crime that is supported by probable cause, a warrant must tie the items to be seized to some particular crime. See, e.g., United States v. Rosa, 626 F.3d 56, 62 (2d Cir. 2010) (warrant authorizing seizure of electronic equipment without specifying the legal violation “provided [officers] with no guidance as to the type of evidence sought” and constituted a general warrant); United States v. Burgess, 576 F.3d 1078, 1091 (10th Cir. 2009) (“If the warrant is read to allow a search of all computer records without description or limitation it would not meet the Fourth Amendment’s particularity requirement.”). This does not mean the warrant has to specify each particular section of the United States Code officers have probable cause to believe a defendant has violated. The Fourth Amendment requires only “reasonable specificity.” Vitek Supply Corp., 144 F.3d at 481. But a warrant must include some reference to the offense so that the officers conducting the search are aware of the search’s authorized scope and cannot rummage through the computer looking for evidence of unrelated crimes.

That being said, I need to consider more than just the face of the warrants in this case. That’s because the Supreme Court has held that a sufficiently particular warrant affidavit can satisfy the Fourth Amendment’s particularity requirement so long it has been incorporated by reference into the warrant. Groh v. Ramirez, 540 U.S. 551, 557-58 (2004). In this Circuit, an affidavit need not be explicitly incorporated or attached to the search warrant; it is enough that the magistrate considers the affidavit before issuing the warrant and the executing officers comply with the warrant’s terms. See United States v. Jones, 54 F.3d 1285, 1291 92 (7th Cir. 1995); see also United States v. Dennis, 115 F.3d 524, 528 29 (7th Cir. 1997) (holding “anticipatory” warrant valid because magistrate judge considered affidavit and officers complied with warrant’s terms).

Here the warrant affidavits made clear that Bradbury was being investigated for making a threat on Facebook to kill law enforcement officers and destroy government property using guns and thermite explosives. [DE 69-1; DE 69-2.] There is no doubt that the issuing judges considered the affidavits before issuing the warrants, and both affidavits are referred to in their respective warrant. [DE 55-1; DE 55-3.] Finally, there is no real argument that the officers exceeded the limits of probable cause. In fact, Officer Leshney only conducted a cursory search of Bradbury’s computer before obtaining a detailed federal warrant for a comprehensive search. Therefore, because the affidavits were incorporated into the warrants, the warrants satisfied the Fourth Amendment’s particularity requirement. And Bradbury’s motion to suppress is DENIED.