AZ: Computer search warrants get greater scrutiny; this one lacked all particularity and no GFE applies

Computer search warrants get greater scrutiny. The search warrant for defendant’s computer lacked any particularity, and it could not be saved by the good faith exception. State v. Dean, 2017 Ariz. App. LEXIS 12 (Jan. 12, 2017):

P16 Because of the privacy interests at stake in computers, and the large amount of personal information available therein, we likewise conclude that a warrant that does not specify that officers intend to search a computer is not sufficiently particular to authorize such a search. See United States v. Galpin, 720 F.3d 436, 446 (2d Cir. 2013) (“Where … the property to be searched is a computer hard drive, the particularity requirement assumes even greater importance.”); United States v. Christie, 717 F.3d 1156, 1164 (10th Cir. 2013) (“[T]he particularity requirement and its underlying purposes are fully engaged when investigators seek to search a personal computer.”). Here, category B of the warrant does not specify that a computer is one of the “items” to be searched for visual depictions of “minors engaged in exploitive exhibition.”

P17 In United States v. Giberson, 527 F.3d 882, 884 (9th Cir. 2008), an official conducted a search of a defendant’s residence pursuant to a warrant that authorized him to search for certain documents. The defendant claimed that, because the warrant did not authorize a search of his computer, it lacked sufficient particularity. Id. at 886. The court noted the officers had probable cause to believe the computer would contain the documents sought and they “merely secured the computer while they waited to get a second warrant that would specifically authorize searching the computer’s files.” Id. at 889. However, in United States v. Payton, the court clarified that in the absence of the circumstances highlighted in Giberson, a warrant must explicitly authorize a search of a computer. Payton, 573 F.3d 859, 864 (9th Cir. 2009).

P18 None of the circumstances present in Giberson are present here. Based on the evidence within the scope of our review, the officers did not merely seize the computer while they obtained a warrant to search it, and the officer requesting the warrant did not have probable cause to believe Dean had child pornography. See 527 F.3d at 889. Accordingly, the second Spilotro factor also weighs against the state.

P19 Finally, we must assess whether it was possible for the state to describe the items sought with greater particularity, the last Spilotro factor. As to category A, the state could have specified that it wanted to search Dean’s computers and electronic devices for child pornography. As to category B, the state could have specified that “computers” were included as part of the “items” to be searched. See United States v. Mann, 389 F.3d 869, 878 (9th Cir. 2004) (warrant was sufficiently particular, in part, because “officers had no additional information available that would have allowed them to describe the items more particularly at the time the warrant was issued”). Here, the warrant lacked particularity because category A adequately articulated the items to be searched, including computers, but placed no limitation on the specific evidence sought. By contrast, category B described the evidence sought but lacked specificity on the items to be searched.

P20 Because all three Spilotro factors weigh against the state, we conclude the warrant here was not sufficiently particular. The remaining question, then, is whether the warrant was so lacking in particularity that it was not objectively reasonable for an officer to rely on it. Spilotro, 800 F.2d at 968. This court has previously held that a “search warrant which does not particularly describe either the place to be searched or the items to be seized is not facially valid, and the police cannot rely on it in good faith.” State v. Williams, 184 Ariz. 405, 407, 909 P.2d 472, 474 (App. 1995). “As an irreducible minimum, a proper warrant must allow the executing officers to distinguish between items that may and may not be seized.” United States v. Leary, 846 F.2d 592, 602 (10th Cir. 1988). Moreover, case law has cautioned officers that warrants authorizing computer searches must be afforded careful scrutiny regarding particularity. See Galpin, 720 F.3d at 446; Christie, 717 F.3d at 1164; see also United States v. George, 975 F.2d 72, 77-78 (2d Cir. 1992) (precedent may be used in determining whether warrant could be relied upon in good faith); cf. Riley v. California, ___ U.S. ___, ___, 134 S. Ct. 2473, 2488-89 (2014) (noting privacy interests in cell phones); State v. Peoples, 240 Ariz. 245, ¶ 15, 378 P.3d 421, 426 (2016) (“Cell phones are intrinsically private ….”). Accordingly, we conclude it was not “objectively reasonable” for officers to rely on the warrant and the good-faith exception does not apply. See Williams, 184 Ariz. at 407 n.3, 909 P.2d at 474 n.3.

P21 In the trial court, the state argued as an alternative ground for upholding the search that Dean was on parole at the time and “may have given consent to searches by law enforcement of his residence as a condition of his parole.” The state now argues that we should remand this case for a determination of whether the search was permissible on that ground. While the state briefly noted this argument in its response to Dean’s motion to suppress, it also stated: “If the State can develop this theory the evidence will be presented at the evidentiary hearing.” But at the evidentiary hearing, the state did not present any evidence regarding the terms of Dean’s parole in Missouri. The state therefore did not present the trial court with the evidence necessary to make a finding on this issue and did not meet its burden of demonstrating the lawfulness of the search on this ground. See Ariz. R. Crim. P. 16.2(b); Hyde, 186 Ariz. at 266, 268, 921 P.2d at 669, 671 (in challenging search warrant, defendant bears burden of production but state bears burden of persuasion); State v. Boteo-Flores, 230 Ariz. 551, ¶ 10, 288 P.3d 111, 114 (App. 2012); cf. United States v. Dickler, 64 F.3d 818, 832 (3d Cir. 1995) (“[W]here the government has the burden of production and persuasion … its case should ordinarily have to stand or fall on the record it makes the first time around.”).

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