E.D.Wis.: SW particularity shown in attachments; lack of a computer search protocol not a violation of Fourth Amendment

The attachments to the application and search warrant, reasonably read, limited the search and provided necessary particularity. [Comprehensive discussion of principles of interpretation of documents.] The lack of a computer search protocol didn’t violate the Fourth Amendment. United States v. Smith, 2016 U.S. Dist. LEXIS 64231 (E.D.Wis. April 18, 2016), adopted 2016 U.S. Dist. LEXIS 64221 (E.D. Wis. May 16, 2016):

Smith makes one additional argument that is worth noting. Smith points out that the warrant did not contain a search protocol and suggests that the omission failed to ensure particularity. It is true that magistrate judges have increasingly included protocols with warrants for searching for computers. And some magistrate judges have even denied applications for search warrants for omitting a search protocol. See, e.g., In re Cellular Telephones, No. 14-MJ-8017, 2014 U.S. Dist. LEXIS 182165, 2014 WL 7793690, at *11 (D. Kan. Dec. 30, 2014) (Waxse, M.J.); In re Search of Premises Known as Three Cellphones & One Micro—SD Card, No. 14-MJ-8013, 2014 U.S. Dist. LEXIS 108470, 2014 WL 3845157, at *1 (D. Kan. Aug.4, 2014) (Waxse, M.J.); In re Nextel Cellular Tel., No. 14-MJ-8005, 2014 U.S. Dist. LEXIS 88215, 2014 WL 2898262, at *13 (D. Kan. June 26, 2014) (Waxse, M.J.); In re Search of Apple iPhone, 31 F. Supp. 3d 159, 166 (D.D.C. 2014) (Facciola, M.J.); In re Search of ODYS LOOX Plus Tablet, 28 F. Supp. 3d 40, 46 (D.D.C.2014) (Facciola, M.J.); In re Search of Black Iphone 4, 27 F.Supp.3d 74, 79 (D.D.C. 2014) (Facciola, M.J.); see also In re Search of: 3817 W. West End, 321 F. Supp. 2d 953, 961 (N.D.Ill. 2004) [*13] (Schenkier, M.J.). Generally, the search protocols are used to protect against the overseizure of data for which there is no probable cause and to ensure that the warrants satisfy the particularity requirement of the Fourth Amendment. See In re Search of Apple iPhone, 31 F. Supp. 3d at 164-67. However, there is no Seventh Circuit precedent or even appellate precedent from other circuits requiring that a warrant to search a computer include a search protocol to satisfy the Fourth Amendment. Accordingly, to the extent that Smith argues that the lack of a search protocol was fatal to the warrant, that argument also fails.

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