CA AF: Oral search authorization for pictures of adults did not permit clicking on other pictures out of curiosity

A federal search warrant for a computer of a member of the military seized from his apartment off base on an oral search authorization was valid. Appellant had taken pictures at a party where a sexual assault was alleged to have occurred, and OSI was investigating. He voluntarily showed them pictures on his computer, but they felt that there were more. They came back and seized the computer because there was evidence on it. He was not a suspect in any crime. After the seizure, OSI figured out that they should get a written search authorization. At the time the warrant was issued, the USMJ asked whether the hard drive of the computer had been searched, and they said it hadn’t. The officers, however, had clicked on photographs which was beyond the authority in the oral search authorization because she was curious whether child pornography was on the computer. The search was thus invalid. United States v. Osorio, 66 M.J. 632 (A.F. C.A. 2008):

Here we find SA JL exceeded the scope of the search warrant the minute she opened the thumbnail to, in her own words, “make sure it was not contraband.” SA JL admitted on cross-examination that she opened the thumbnail to verify if the picture was child or adult pornography, not to verify it was a mirror image of the other computer or to review a photograph taken on February 12, 2005. Having testified that she was not aware of the terms of the warrant and that once she opened the picture directory tree, her job was done, we find that SA JL was not acting within the scope of the warrant at the time of the discovery of the first suspect image.

As in Carey, the terms of the first warrant did not authorize SA JL to conduct a general search. She was only authorized to search for photos that related to a specific date. Thus we find that the military judge erred when she found that the scope of the warrant included clicking on any nude photos. While the affidavit mentions photos of nude or partially nude people, the warrant does not reference or authorize a search for any “nude photos” unrelated to the specific date included in the warrant. The federal magistrate limited the scope by the date of the photos. Searching beyond that date exceeded the warrant’s scope. To conclude otherwise would invalidate our conclusion that the warrant was sufficiently specific to be valid.

Furthermore, we find that the intent of SA JL during her search is significant on the issue of scope. SA JL’s intent in clicking on the nude photographs was, in her own words, to determine if it was “contraband” and child pornography. As she was unaware of the terms of the warrant, it is clear she was not opening the files to see if the pictures related to the 12 February party. Similar to the investigator in Carey, SA JL was conducting a “general search” of the thumbnails for pictures of child pornography and looking for child pornography, instead of pictures of the 12 February 2005 party. See Carey, 172 F.3d at 1273.