M.D. Ga.: Law firm search warrant permitted seizure of all electronic equipment for later search

Search of bookbag during consent to search a car was reasonable and within the consent. Vaughan v. Commonwealth, 53 Va. App. 435, 672 S.E.2d 909 (2009).*

Officers had reasonable suspicion to pat-down defendant because the officers reasonably suspected that he was armed and dangerous since rumors of drug-trafficking by defendant and the driver were specific enough to be reliable, the information that defendant had brandished a gun 17 days earlier was not stale, and the manner in which defendant exited the car without facing the officer reasonably aroused suspicion. United States v. Lazos, 314 Fed. Appx. 127 (10th Cir. 2009) (unpublished).*

Third party consent after defendant’s allegedly invalid arrest was valid. United States v. Sanders, 315 Fed. Appx. 819 (11th Cir. 2009) (unpublished).*

Probable cause existed for issuance of a search warrant for defendant’s law offices in an honest services fraud case. Seizure of all electronic equipment for a later search was justified and not overbroad. The taint team found a file that was outside the scope of the warrant and segregated it, but that does not warrant suppression. United States v. Sutton, 2009 U.S. Dist. LEXIS 14542 (M.D. Ga. February 25, 2009):

Here, the Court finds that the warrant’s authorization for agents to seize “any and all” electronic equipment does not render it insufficiently particular. The Affidavit established probable cause to believe that documentation of Sutton’s representation of various Blitch family members and entities constituted evidence of a crime. The warrant thus authorized the agents to seize such documentation “in whatever format.” (Grady Warrant Aff. p. 36.) The warrant goes on to list various formats of electronic data as being subject to seizure. It is well-established that “[a] lawful search of a fixed premises generally extends to the entire area in which the object of the search may be found.” United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). The documentation sought by the warrant in this case could have been found in an electronic format in any one of the various devices that was listed as subject to seizure. Thus, it was not unreasonable for the warrant to authorize agents to seize the listed electronic devices during its search for evidence. Due to the nature of electronic devices, there is no way to know what data is contained in them without actually examining the devices’ contents.

In addition, the warrant is not rendered insufficiently particular based on the lack of a search protocol for electronic data. The absence of a written search protocol for electronic data does not render a search per se unreasonable under the Fourth Amendment. Khanani, 502 F.3d at 1291; see also United States v. Cartier, 543 F.3d 442, 447 (8th Cir. 2008); United States v. Brooks, 427 F.3d 1246, 1251-52 (10th Cir. 2005). Rather, as with all searches, the touchstone is whether the search was reasonable under the totality of the circumstances. See Khanani, 502 F.3d at 1291 (analyzing circumstances surrounding computer search to determine whether it was reasonable); see also Cartier, 543 F.3d at 447 (holding that search of computer in absence of written protocol was reasonable under the Fourth Amendment where the defendant could not establish that he was prejudiced by a search of unrelated files or that unrelated files were actually searched). Sutton has not presented any facts that would lead this Court to conclude that the search of electronic data in this case was unreasonable under the totality of the circumstances. Thus, the Court finds that the absence of a written search protocol in this case does not render the warrant unconstitutional.

. . .

As to Sutton’s client files that were outside the scope of the warrant, Dasher, the privilege prosecutor, submitted to the Court all evidence outside the scope of the warrant that was seized by the agents. This evidence, in addition to not being voluminous, does not contain a single client file that does not belong to a member of the Blitch family or an entity owned by the Blitches. At the hearing, Sutton’s receptionist, Cason, did testify that it appeared agents opened “two or three” client files that did not belong to any of the Blitches, (Dec. 17 Hr’g Tr. 128); however, the agents’ conduct in opening these files does not amount to a flagrant disregard for the terms of the warrant.

Last, Sutton argues that the agents’ conduct constituted a flagrant disregard because Agent Cynthia Allard seized a printout of an email that Sutton sent to Withers, his defense attorney in this criminal case. Agent Allard’s conduct in seizing the email is disturbing, and the Court does not condone her conduct; however, the Court cannot say that this one instance of inappropriate conduct renders the entire search unreasonable.