N.D.Ala.: Taint team not required for this document and ESI search, and that part of process vacated

The USMJ’s requirement of a taint team to review the materials seized in execution of the search warrant is unnecessary in this case and not required by the Fourth Amendment, and it is set aside. United States v. Sealed Search Warrant, 2017 U.S. Dist. LEXIS 125792 (N.D. Ala. Aug. 8, 2017):

B. The Government Is Permitted To Review Documents That May Be Non-Responsive to the Warrant To Determine Which Documents Are, in Fact, Responsive.

While the magistrate judge is likely correct that there are innocuous emails amongst any incriminating ones, “some perusal” is generally necessary to determine the “relevance of documents to the crime.” United States v. Slocum, 708 F.2d 587, 604 (11th Cir. 1983); see also Andresen v. Maryland 427 U.S. 463, 482 n.11, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976) (“In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.”). In noting that “an officer executing a warrant is entitled to examine any document he discovers” (Slocum at 604), the Eleventh Circuit has shown that it has contemplated the fact that officers executing a search of documents will inherently be exposed to documents and information that are not the subject of the warrant, but the Circuit does not consider such cursory review alone to be a violation of the Fourth Amendment. However, the Government’s perusal must cease once the inapplicability of the warrant becomes clear. Id.

When an officer comes upon a container that might contain incriminating evidence, that container “may be opened immediately.” United States v. Ross, 456 U.S. 798, 823, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). The allowance of searching with immediacy suggests that the investigative team itself is allowed to search despite the possibility that innocuous materials might be present. Indeed, the Court stated that the privacy interest “must give way to the prompt and efficient completion of the task at hand.” Id. at 821 (emphasis added).

Clearly, both the Supreme Court and the Eleventh Circuit have contemplated the realities of warranted searches. They both have carefully considered the Fourth Amendment protection that should be afforded to innocuous documents and found that searches must be allowed unimpeded despite the document owner’s privacy interests. Accordingly, the Government will be afforded deference in determining the search protocol for the fruits of this warrant.

C. The Reasonableness of a Search Is Appropriately Judged After the Fact; Therefore, the Government Will Be Shown Deference in Executing the Search.

In the application for an arrest warrant, the Fourth Amendment interposes the “impartial judgment of a judicial officer” between citizens and the police “to assess the weight and credibility of the information which the complaining officer adduces as probable cause.” Wong Sun v. United States, 371 U.S. 471, 481-482, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The Supreme Court later clarified that this ex ante protection also applies to search warrants, adding that the Fourth Amendment provides, “ex post, a right to suppress evidence improperly obtained and a cause of action for damages.” Grubbs, 547 U.S. at 99. That ex post protection is the “later judicial review as to [the] reasonableness” of a search that is required by Dalia. 441 U.S. at 258; see supra Part II at 7; see also Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc) (Noting that Fourth Amendment reasonableness is judged “after [factual] circumstances unfold, not before.”).

Despite this guidance from the Supreme Court, magistrate judges have at times attempted to dictate the method that the Government should use to execute a warrant; however, district courts have found these attempts to be inappropriate. In the Matter of the Search of Information Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., 25 F. Supp.3d 1 (D.D.C. 2014) (hereinafter “Apple I”). …

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