CAAF: “Though a temporal limitation is one possible method of tailoring a search authorization, it is by no means a requirement.”

A temporal limitation on a computer search isn’t practical because it could unreasonably limit investigators’ ability to search for files within the search authorization. “Though a temporal limitation is one possible method of tailoring a search authorization, it is by no means a requirement.” United States v. Richards, 2017 CAAF LEXIS 709 (July 13, 2017):

Searches of electronic devices present distinct issues surrounding where and how incriminating evidence may be located. While we support the notion that “warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material,” United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005), we also recognize the dangers of too narrowly limiting where investigators can go. As stated by the United States Court of Appeals for the Seventh Circuit, “[u]nlike a physical object that can be immediately identified as responsive to the warrant or not, computer files may be manipulated to hide their true contents.” United States v. Mann, 592 F.3d 779, 782 (7th Cir. 2010). “[I]n the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files. It is particularly true with image files.” Burgess, 576 F.3d at 1094; see also United States v. Williams, 592 F.3d 511, 521-22 (4th Cir. 2010) (positing an implied authorization for officers to open each file on the computer and view its contents, at least cursorily, to determine whether it falls within the scope of the warrant’s authorization. “To be effective, such a search could not be limited to reviewing only the files’ designation or labeling, because the designation or labeling of files on a computer can easily be manipulated to hide their substance”). Of course our reluctance to prescribe ex ante limitations or require particular search methods and protocols does not render them immune from an ex post reasonableness analysis. See, e.g., United States v. Christie, 717 F.3d 1156, 1167 (10th Cir. 2013) (“[E]ven if courts do not specify particular search protocols up front in the warrant application process, they retain the flexibility to assess the reasonableness of the search protocols the government actually employed in its search after the fact, when the case comes to court, and in light of the totality of the circumstances.”).

In charting how to apply the Fourth Amendment to searches of electronic devices, we glean from our reading of the case law a zone in which such searches are expansive enough to allow investigators access to places where incriminating materials may be hidden, yet not so broad that they become the sort of free-for-all general searches the Fourth Amendment was designed to prevent.

On one hand, it is clear that because criminals can—and often do—hide, mislabel, or manipulate files to conceal criminal activity, a broad, expansive search of the hard drive may be required…. On the other hand, … granting the Government a carte blanche to search every file on the hard drive impermissibly transforms a “limited search into a general one.”

United States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011) (citations omitted).

Appellant argues that the November 9, 2011, authorization was overbroad because it did not contain a temporal limitation when that information was available and known to investigators. Applying the above Fourth Amendment law, we conclude that the authorization did not require a date restriction because it was already sufficiently particularized to prevent a general search. Though a temporal limitation is one possible method of tailoring a search authorization, it is by no means a requirement. Here, the authorization and accompanying affidavit did not give authorities carte blanche to search in areas clearly outside the scope of the crime being investigated. They were entitled to search Appellant’s electronic media for any communication that related to his possible violation of the Florida statute in his relationship with AP.

We also conclude that the authorization allowed for a search of the unallocated space and through potential communications materials that did not have an immediately clear date associated with them. The precise extraction process utilized by Agent Kleeh and the accessibility of metadata on unallocated materials was not fleshed out in trial or anywhere on the record. However, we deduce from Mr. Kleeh’s testimony that metadata for unallocated materials often does not exist or is difficult to extract. We conclude that the possibility that relevant communications could have existed among the unallocated materials provided sufficient basis to subject those materials to an authorized and particularized search.