CA11: 21 day delay in getting SW for computer search was unreasonable; a seizure lawful at its inception can become unreasonable

The Eleventh Circuit held that a 21 day delay in getting a search warrant for a computer hard drive was unreasonable, and suppressed child pornography found on the hard drive. Entering the CPU was not a search, but it was a violation of a possessory interest. United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009):

While the disassembling of the CPU did not constitute a search of a container in which Mitchell had a reasonable expectation of privacy, it did constitute an interference with his possessory interest. So too would the seizure of the entire computer to ensure that the hard drive was not tampered with before a warrant was obtained. Yet Mitchell correctly concedes that such a seizure would not have violated the Warrant Clause. Texas v. Brown, 460 U.S. 730, 749-50, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (Stevens, J., concurring); United States v. Jacobsen, 466 U.S. 109, 121, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); United States v. Martin, 157 F.3d 46, 53 (2d Cir. 1998); see also United States v. Hernandez-Cano, 808 F.2d 779, 782 (11th Cir. 1987). Under these circumstances, to borrow a phrase from the Supreme Court in an analogous case, which would have been “the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question.” Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970).

But while the initial seizure of the hard drive was permissible, even “a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment’s prohibition on ‘unreasonable searches.'” Jacobsen, 466 U.S. at 124. Thus, “even a seizure based on probable cause is unconstitutional if the police act with unreasonable delay in securing a warrant.” Martin, 157 F.3d at 54; see also United States v. Respress, 9 F.3d 483, 488 (6th Cir. 1993) (“even with the existence of probable cause to effect a seizure, the duration of the seizure pending the issuance of a search warrant must still be reasonable.”). The reasonableness of the delay is determined “in light of all the facts and circumstances,” and “on a case-by-case basis.” Mayomi v. United States, 873 F.2d 1049, 1054 n.6 (7th Cir. 1989). “[T]he reasonableness determination will reflect a ‘careful balancing of governmental and private interests.” Soldal v. Cook County, 506 U.S. 56, 71, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992); see also United States v. Prevo, 435 F.3d 1343, 1345 (11th Cir. 2006).

Computers are relied upon heavily for personal and business use. Individuals may store personal letters, e-mails, financial information, passwords, family photos, and countless other items of a personal nature in electronic form on their computer hard drives. Thus, the detention of the hard drive for over three weeks before a warrant was sought constitutes a significant interference with Mitchell’s possessory interest. Nor was that interference eliminated by admissions Mitchell made that provided probable cause for the seizure. As the United States magistrate judge observed: “A defendant’s possessory interest in his computer is diminished but not altogether eliminated by such an admission for two reasons: (1) a home computer’s hard drive is likely to contain other, non-contraband information of exceptional value to its owner, and (2) until an agent examines the hard drive’s contents, he cannot be certain that it actually contains child pornography, for a defendant who admits that his computer contains such images could be lying, factually mistaken, or wrong as a matter of law (by assuming that some image on the computer is unlawful when in fact it is not).” United States v. Mitchell, CR407-126, 2007 U.S. Dist. LEXIS 74349, 2007 WL 2915889, at *7 (S.D. Ga. 2007).

While the possessory interest at stake here was substantial, there was no compelling justification for the delay. …