N.D.Ga.: Authority to seize electronic media during search implicitly includes searching it later, if need be

A warrant for seizure of electronic media in a house carries with it authority to search it once it’s seized. Here, it was computers and cell phones. “Defendant’s Motion to Suppress [15] raises two questions: first, whether this warrant, which authorized the search of a house, implicitly also authorized searches of computer media found within the house; and, second, whether the agents, having undertaken an initial search of the phone on-site that yielded no evidence, were authorized without obtaining a new warrant to take the phone back to their lab for further, more sophisticated searching. As explained below, the undersigned finds for the Government on both of these questions, and RECOMMENDS that the Motion to Suppress [15] be DENIED.” United States v. Hendley, 2015 U.S. Dist. LEXIS 162152 (N.D.Ga. Oct. 19, 2015):

There is not a wealth of case law discussing how the Ross rule — allowing searches of containers found within premises lawfully being searched — applies to computer or other electronic storage containers seized during the execution of a warrant to search a premises. But those cases that have wrestled with this issue have uniformly upheld such electronic searches, and found that no second warrant is required to search electronic media that have been validly seized.²

For example, the 1st Circuit in United States v. Rogers, 521 F.3d 5, 9-10 (1st Circuit 2008), discussed whether a warrant authorizing the search of an apartment for a computer and for “photos” of a particular minor child also necessarily authorized agents to search a videotape found within the apartment, because it was reasonable to believe that such images could be stored on the videotape. The court upheld the validity of the electronic videotape search in that case, applying the principle established in Ross and other cases that “any container situated within a residential premises which are the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container would conceal items of the kind portrayed in the warrant.” Id. (internal quotations and citations omitted). The court agreed with the Government’s position, that the term “photos” reasonably included images captured by videotape or digital camera, and that the warrant therefore authorized the search of the videotape. Id.

Judge Thrash in this District confronted a similar question in United States v. Rhoades, No. 1:08-CR-56-TWT, 2008 WL 3925168,*8-9 (Aug. 26, 2008). In that case, agents executed a search at a residence pursuant to a warrant that authorized them to search for and seize computer equipment and also “images of FBI identification or law enforcement credentials and files containing images of such identification and credentials in any form ….” The agents found a digital video disc (“DVD”) entitled “teen pics,” searched that disc, and found evidence of child pornography (which was not a subject of the initial search warrant) in apparent plain view. The Defendant argued that this review exceeded the scope of the original warrant by searching the contents of the DVD, when all the warrant specifically authorized was a search of the house itself for FBI credentials and other documents, and to seize (but not to search) computer media. Judge Thrash, adopting the recommended ruling of the Magistrate Judge, disagreed, finding that the agents were authorized to review the contents of the DVD to determine whether it contained evidence of the type covered by the search warrant. Id. (Citing United States v. Gilberson, 527 F.3d 882, 886 (9th Cir. 2008) (“We have long held that a search warrant authorizing the seizure of materials also authorizes the search of objects that could contain those materials.”); United States v. Gregoire, No. 09-275, 2009 WL 5216844, *14 (D.Minn. 2009) (finding that a warrant authorizing a search for records in a premises authorized the search of a computer found in those premises for those records).

2. Obviously, a second warrant is required where agents wish to search a computer seized during execution of a warrant for evidence of other crimes not specified in the warrant. See United States v. Carey, 172 F.3d 1268, 1273 (10th Cir. 1999). That is not the case here.