9th Cir.: Computers not subject to special rules for search

The nature of a computer as a repository of personal data and technological changes did not change the rationale that a computer can be searched under a warrant that identifies it and shows probable cause for its search. United States v. Giberson, 527 F.3d 882 (9th Cir. 2008):

Giberson does not deny that it was reasonable in this case for the agents to believe that the documents specified in the warrant might be found on his computer. Rather, he argues that the analogy between a computer and other “containers” is not appropriate because computers are somehow entitled to heightened protection, and are searchable only when specified in the warrant. We observe at the outset that Fourth Amendment exceptions and distinctions based solely on a type of technology are “unwise[ ] and inconsistent with the Fourth Amendment.” See Kyllo v. United States, 533 U.S. 27, 41 (2001) (Stevens, J., dissenting). Technology changes. To be acceptable, Giberson’s argument must be based on a principle that is not technology-specific. Though Giberson offers several rationales for treating computers differently from storage mediums such as filing cabinets and briefcases, none is persuasive.

Giberson’s principal argument is that computers are able to store “massive quantities of intangible, digitally stored information,” distinguishing them from ordinary storage containers. But neither the quantity of information, nor the form in which it is stored, is legally relevant in the Fourth Amendment context. While it is true that computers can store a large amount of material, there is no reason why officers should be permitted to search a room full of filing cabinets or even a person’s library for documents listed in a warrant but should not be able to search a computer. Giberson’s purported exception would also create problems in analyzing devices with similar storage capacities. If we permit cassette tapes to be searched, then do we permit CDs, even though they hold more information? If we do not permit computers to be searched, what about a USB flash drive or other external storage device? Giberson’s purported exception provides no answers to these questions.

Similarly, attempting to limit Fourth Amendment searches based on the format of stored information would be arbitrary. We have already held that microcassettes, which store data differently from traditional paper, are seizable in a search for “records.” See Gomez-Soto, 723 F.2d at 652. There is no reason why material stored digitally on a computer should not also be searchable. Once again, Giberson’s purported exception generates more questions than answers: If we permit a person’s Day-Timer to be searched, what about one’s Black-Berry? The format of a record or document should not be dispositive to a Fourth Amendment inquiry.

Giberson’s purported rule creates a brightline exception to the Fourth Amendment that provides no principles by which to evaluate whether a search is reasonable. The Supreme Court has consistently eschewed such brightline rules. See Ohio v. Robinette, 519 U.S. 33, 39 (1996). Here, the only principle upon which we can anchor this analysis is the one already articulated by this court: that to search a container, it must be reasonable to expect that the items enumerated in the search warrant could be found therein. If it is reasonable to believe that a computer contains items enumerated in the warrant, officers may search it. Here, numerous documents related to the production of fake I.D.s were found in and around Giberson’s computer and were arguably created on and printed from it. It was therefore reasonable for officers to believe that the items they were authorized to seize would be found in the computer, and they acted within the scope of the warrant when they secured the computer.