CA9: Search for evidence of drug sales that came up empty did not justify search of defendant’s computer

A search warrant for drugs and possible records of drug sales did not permit officers to enter defendant’s computer where the execution of the warrant produced no evidence of drug sales on the premises. (There was also a Franks violation because the officer represented a neighbor’s report of drug use as drug sales, but the remainder of the affidavit showed PC. Child porn was found on the computer.) United States v. Payton, 573 F.3d 859 (9th Cir. 2009):

The search warrant did explicitly authorize a search of Payton’s premises to find and seize, among other things, “[s]ales ledgers showing narcotics transactions such as pay/owe sheets,” and “[f]inancial records of the person(s) in control of the premises.” The crucial question is whether these provisions authorized the officers to look for such records on Payton’s computer. We conclude that, under our recent and controlling precedent of United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), as applied to the circumstances of this case, they did not.

. . .

. . . As we read this passage, it holds that under certain circumstances, computers are not an exception to the rule permitting searches of containers to find objects specified in a warrant. A reasonable negative inference is that, absent those circumstances, a search of a computer not expressly authorized by a warrant is not a reasonable search. Those circumstances are absent in the present case. The search of Payton’s residence for evidence of drug sales produced none. There was nothing in the neighborhood of Payton’s computer, or indeed in the entire residence, that suggested that evidence of drug sales or anything else specified in the warrant would be found on the computer in his bedroom.

It is true, of course, that pay/owe sheets indicating drug sales were physically capable of being kept on Payton’s computer. But a similar bare capability was present in Giberson; a computer is physically capable of containing false identification documents. In Giberson, we did not simply recite that fact and uphold the seizure; we relied quite specifically on the documents found next to the printer and the computer, in circumstances indicating a likelihood that they were created on and printed from the computer. It was the presence of those documents that rendered the search reasonable.