D.Me.: Use of a “hash mark” for particularity in a computer search not feasible so not required

Criticizing Comprehensive Drug Testing, posted here, is United States v. Farlow, 2009 U.S. Dist. LEXIS 112623 (D. Me. December 3, 2009). In this case, the defendant asserted that the search could be limited to hash marks on an image, but a government witness testified that the hash marks changed with every save of the image. Therefore, it was not required as a limitation on the search.

Admittedly, if CDT applied here, and the Government had forsworn or been ordered to forswear the plain view doctrine in searching, and a third party had segregated all photographs not directly related to the search for evidence of the state of New York crimes, either Sgt. Lang would not have discovered the child pornography or the third party would have been compelled not to have disclosed its existence. But, no other circuit has gone as far as the Ninth to require such significant preconditions on the issuance of search warrants for computers. In the Court’s view, the far preferable approach is to examine the circumstances of each case, to assess the validity of the computer search protocol, to determine whether the police strayed from the authorized parameters of the search warrant, and to hold the police to constitutional standards in the context of a motion to suppress. If the police conduct is as egregious as the Ninth Circuit found in CDT, the Court can consider appropriate remedies. This fact-intensive, considered analysis is what Upham contemplates. Upham, 168 F.3d at 536 (stating that “[t]his problem arises in a variety of different contexts and in many permutations; matters of degree are involved and there is probably no single rule that resolves all such situations”).

In the First Circuit, Upham remains the law. Id. at 535 (stating that “a search of a computer and co-located disks is not inherently more intrusive than the physical search of an entire house for weapons or drugs”). Whether Upham authorizes a deliberate law enforcement search of Mr. Farlow’s computer for child pornography under the guise of a search for a single non-pornographic digital photograph of a bodybuilder is highly questionable. Id. (stating that “[t]he requirement of particularity arises out of a hostility to the Crown’s practice of issuing ‘general warrants’ taken to authorize the wholesale rummaging through a person’s property in search of contraband or evidence”).

But, at least in the narrow context of this motion to suppress, Mr. Farlow’s argument fails on the facts. Id. at 636 (stating that “[t]his problem arises in a variety of different contexts and in many permutations; matters of degree are involved and there is probably no single rule that resolves all situations”). Here, Sgt. Lang has declared under the penalty of perjury “[t]he only reasonable way for an examiner to locate most of the copies of a particular image is to do it visually.” Decl. of Glenn Lang at 2. Sgt. Lang rejected the defense assertion that tracking the hash mark would have led to the bodybuilder photograph, since “[e]very time one pixel of a picture is changed the hash value is completely different. If the user were to open the picture and save it to another location with a picture viewer, the hash can be changed via compression. When a file is deleted, its hash value changes.” Id. Based on this evidence, Sgt. Lang’s method of searching the Farlow computer was “about the narrowest definable search and seizure reasonably likely to obtain the images.” Upham, 168 F.3d at 535. This is especially true here, where, as the Magistrate Judge pointed out, Upham emphasized that “[t]he warrant process is primarily concerned with identifying what may be searched or seized–not how–and whether there is sufficient cause for the invasion of privacy thus entailed.” Id. at 537 (emphasis in original).