D.P.R.: SW for seizure of digital media in child porn case was constitutionally particular

The search warrant in this child porn case was constitutionally particular when it sought seizure of defendant’s electronic media for child porn. United States v. Crespo-Rios, 623 F. Supp. 2d 198 (D. P.R. 2009):

The warrant to search Defendant’s home listed numerous items to be seized related to the seduction of children. Because the suspected commission of this crime involved the use of the Internet, the warrant also included computer equipment, digital, and magnetic storage devices, and other digital media. The preface of the search warrant limited the seizure to only evidence of criminality. Specifically, the seizure was limited to evidence of transfer of obscene material to minors and of coercion of a minor to engage in sexual activity. Since the warrant suggested that the digital media to be seized was related to a specific criminal activity, it cannot be classified as a generic classification that would go against the particularity requirement of the Fourth Amendment. See, e.g., United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) (holding that a warrant failed to comply with the Fourth Amendment’s particularity requirement because it failed to give any indication of the alleged crime to which the seized documents pertained). Thus, this Court holds that suppression is not warranted under the particularity requirement of the Fourth Amendment because contrary to Defendant’s argument the warrant was not overbroad in including Defendant’s digital media among the items to be seized as he was suspected of using his computer system and accessories to seduce children and to transfer obscene material to them. Nevertheless, as will be further explained below, all evidence of child pornography obtained from the digital media must be suppressed because the search of the digital media was unreasonable.

Claimant’s pre-indictment motion for return of his computer and disks is denied because he cannot show that the seizure violates any rights by its “callous disregard” of rights. He is in jail and unindicted, but, being in jail, he has alleged no immediate need for the computer and disks. Hovey v. United States, 2009 U.S. Dist. LEXIS 49753 (D. Mont. June 11, 2009):

In evaluating a pre-indictment Rule 41(g) motion a court must consider whether: (1) the Government displayed a callous disregard for the constitutional rights of the movant; (2) the movant has an individual interest in and need for the property he wants returned; (3) the movant would be irreparably injured by denying return of the property; and (4) the movant has an adequate remedy at law for the redress of his grievance. Ramsden v. United States, 2 F.3d 322, 324-325 (9th Cir. 1993). Even if the computer and discs were in the government’s possession, as Hovey alleges, he has not shown that the government displayed a callous disregard for his constitutional rights in the search and seizure of the property. The government was issued a warrant for the search of the Gateway Computer and six discs while it was in the possession of the Missoula Police Department. The warrant indicated that parts of two internal hard drives would be copied along with the six discs.

Plaintiff is currently incarcerated and has not alleged a compelling interest for the immediate need of the property. He has not alleged that he would be irreparably harmed if the United States retains the information copied from the computer and discs or the computer itself. Plaintiff also retains the right to challenge the warrant and the seizure of property in his current state proceedings and any federal proceedings should they arise.