D.S.D.: Def retained REP in his phone from a second search by the feds after a state search without a SW; plain view doesn’t apply to digital searches

Defendant retained a reasonable expectation of privacy in his cell phone after a state search when the phone data was turned over to the ATF, and they, too, should have obtained a search warrant. The court discusses United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) (en banc), at length. United States v. Hulscher, 2017 U.S. Dist. LEXIS 23096 (D.S.D. Feb. 10, 2017), adopted in part, 2017 U.S. Dist. LEXIS 22874 (D.S.D. Feb. 17, 2017) (overruling USMJ on plain view in digital searches):

As to the government’s initial overseizure of data from CDT, the court accepted the government’s contention that, because it could not be sure whether digital “data may be concealed, compressed, erased or booby-trapped without carefully examining the contents of every file” on the computers, this required the government to seize the entire hard drive. Id. at 1170. The government then argued that once it seized the digital information from CDT and saw information showing steroid use by other baseball players aside from the 10 players listed in the original search warrant, that information was in plain view and, thus, properly obtained by the government. Id. The very fact that the technology required the government to seize all electronic data in order to effectuate the limited search warrant was the exact feature that caused the Ninth Circuit to reject the plain view doctrine: if everything electronically seized by the government comes into plain view, it would create “a powerful incentive for them to seize more rather than less:” Why stop with one directory in a computer—just take the entire hard drive. Why stop with the hard drive on one computer—just make copies of the hard drive on all computers. “Let’s take everything back to the lab, have a good look around and see what we might stumble upon.” Id. at 1171. The application of the plain view doctrine to overseized electronic data would make a mockery of the Fourth Amendment’s prohibition on general warrants. Id. at 1171, 1176. The government cannot be entitled to “keep anything one of its agents happened to see while performing a forensic analysis of a hard drive.” Id. at 1171. See also United States v. Carey, 172 F.3d 1268, 1272-74 (10th Cir. 1999) (refusing to apply plain view doctrine to search for digital documents related to drug trafficking where police discovered evidence of child pornography and then actively abandoned the search for drug evidence and looked for more child pornography).

There is good reason not to apply the plain view doctrine to examinations of nonresponsive digital data that is not within the scope of the original warrant. When police make subsequent use of nonresponsive data, they are treating that data as though it was described within the scope of the original search warrant—which it was not. See Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Tex. Tech. L. Rev. at 26. This eliminates the particularity requirement of the Fourth Amendment and “enables every computer warrant that is narrow in theory [or on paper] to become general in fact.” Id.

“[T]he Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.” Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 1564 (2013). Digital evidence is, by necessity, routinely overseized. To adopt a “broad categorical approach” applying the plain view doctrine to digital evidence would likewise unreasonably dilute the warrant requirement. Id. Additionally, because of the breadth of the overseizure, significant privacy interests are at stake—often the great majority of the data seized (as in this case) is unresponsive to the scope of the search set forth in the warrant. Compare Exhibit 5 with Exhibit F. Categorically exempting the viewing of nonresponsive evidence pursuant to the plain view doctrine intrudes to too great of a degree upon an individual’s privacy and is not needed to promote legitimate government interests. Riley, 134 S. Ct. at 2484. Agents can, with little additional burden, obtain a second search warrant instead. Accordingly, this court recommends the plain view exception to the warrant requirement be held not applicable in searches of digital evidence.

Noted in WaPo: The police can’t just share the contents of a seized iPhone with other agencies, court rules by Orin Kerr

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