CAAF: Digital SWs have to expire sometime, so here it was with def’s conviction; search after that unreasonable

A search warrant had issued for defendant’s thumb drive, but it hadn’t been searched. He was convicted of the crime for which the search warrant had issued. There are no specific time limits for when a digital search has to occur, but, at the minimum, it has to be on defendant’s conviction for that crime. United States v. Gurczynski, 2017 CAAF LEXIS 741 (C.A. A.F. July 24, 2017):

We are well aware that neither the Fourth Amendment nor the Federal Rules of Criminal Procedure impose deadlines for the digital examination of seized devices, nor did this specific warrant specify any deadline. But the constitutional principle of reasonableness necessarily bears some relation to the scope of the warrant, the execution of the search warrant, and the timing of the search. See United States v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998); United States v. Jacobsen, 466 U.S. 109, 124, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Even in the absence of a time limit, the government “nevertheless remains bound by the Fourth Amendment to the extent that all seizures must be reasonable in duration.” United States v. Cote, 72 M.J. 41, 44 n.6 (C.A.A.F. 2013). Therefore, the extraordinary length of time between the issuance of the warrant and the digital examination of the thumb drive—over nine months—has some bearing on the question whether the search was constitutionally reasonable.

More important than the mere passage of time, however, is the fact that Appellee had already been convicted of the offenses specified in the warrant. Simply put, the Government had no legitimate interest here in uncovering evidence of the offenses covered by the warrant. Our holding today is narrow: the unique facts in this case compel us to conclude that the Government no longer had a legitimate governmental interest in searching for evidence of the offenses covered by the warrant following Appellee’s convictions, and so the search was constitutionally unreasonable.

Were we to conclude otherwise, we would effectively allow a digital forensic examination “for a period of unlimited duration and an examination of unlimited scope” based on a warrant issued at some time. Cf. United States v. Kim, 103 F. Supp. 3d 32, 59 (D.D.C. 2015). That level of discretion is incompatible with the requirements of particularity and issuance by an independent magistrate weighing probable cause for each offense individually—in other words, the requirements that “make[] general searches . .. impossible and prevents the seizure of one thing under a warrant describing another.” United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988) (alterations in original) (internal quotation marks omitted) (citation omitted). We decline to grant the Government the unbridled discretion to conduct what is functionally a “general, exploratory rummaging in a person’s belongings,” Coolidge, 403 U.S. at 467, by relying on a warrant no longer justified by any legitimate government interest to assert that other evidence was in plain view.

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