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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)