The search warrant for defendant’s property did not specifically say to seize computers, but it sufficiently referred to computer related data and stuff that it was more than reasonable to conclude under the good faith exception that computers were included. United States v. Smith, 2009 U.S. Dist. LEXIS 108911 (M.D. Fla. November 5, 2009) (USMJ’s R&R):
4) Data records related to the above computer related items, whether stored on paper (including computer printouts), on magnetic media such as tapes, cassettes, disk or memory devices such as optical disks, electronic address books, or any other storage media.
5) Any documents or other papers which contain set or sets or numbers or characters which may represent access codes or passwords for the computer, stored computer records, any on-line services, or other long distance carriers, and/or authorized credit agencies.
6) Computer printouts
7) Back-up copies of data and programs on floppy diskettes and other storage media. (Because computer stored data is so vulnerable, most computer users keep back-ups so if data is erased or deleted from the system itself, it may be recoverable on the back-up copies).
8) Data contained on all storage devices, including, but not limited to graphic and text files.
. . .
However, the list for the items to be searched contains many references to items relating to and found within computers including but not limited to storage devices for graphic and text tiles, data records relating to a computer, magnetic media, cassettes, disk or memory devices, and backup files. It was reasonable for the officers to seize the computers based upon the items listed in the Search Warrant. By seizing the computers the officers were within the terms of the search warrant and affidavit and were not conducting a general search.
The District Court adopted the R&R, United States v. Smith, 2009 U.S. Dist. LEXIS 108910 (M.D. Fla. November 19, 2009), adding:
The Court rejects defendant’s argument (Doc. # 46, p. 2) that the state Search Warrant had to comply with the federal definition of computer in 18 U.S.C. § 1030(e). The Court also rejects defendant’s argument (Doc. # 46, pp. 2-4) that allowing seizure of the computers as an authorized item would mean that the February 24, 2009 search warrant was unnecessary. A law enforcement officer’s authority to possess an object is distinct from his or her authority to examine its contents. E.g., Walter v. United States, 447 U.S. 649 (1980); United States v. Jacobsen, 466 U.S. 109 (1984); United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009). The second search warrant may or may not have been necessary, but its issuance does not detract from the validity of the first search warrant.
The Court agrees with the Report and Recommendation’s alternative finding (Doc. # 41, pp. 11-12) that the good faith exception to the exclusionary rule, as articulated in United States v. Leon, 468 U.S. 897 (1984), is satisfied in this case. The good faith exception applies to this type of issue, Travers, 233 F.3d at 1330, and the facts support its application to this case.
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
