E.D.Mich.: Computer search was valid but court requests more comprehensive ex ante review in computer searches

The government obtained a search warrant for defendant’s computer for 18 U.S.C. § 1960 and for operating an unlicensed Bitcoin exchange service. During the search, the officer found an image of child pornography. He stopped the search and applied for a search warrant. The affidavit and search warrant and search are valid, but the court goes on at length about the necessity of comprehensive ex ante review of search warrant materials in computer search cases to avoid oversearches. United States v. Stetkiw, 2019 U.S. Dist. LEXIS 111216 (E.D. Mich. July 3, 2019):

The Court finds that an ex ante “minimization” requirement can address concerns about potential Fourth Amendment violations of protocol-less searches, with a goal of decreasing the amount of non-responsive ESI encountered in a search. See Emily Berman, Digital Searches, the Fourth Amendment, and the Magistrates’ Revolt, 68 Emory L.J. 51, 55 (2018) (discussing the relationship between ex ante review of search protocols and minimization requirements for other warrants that permit the search of broadly seized information like wiretaps). Developing that requirement can also address concerns about how protocols might render searches ineffective.

A process to review ESI search protocols ex ante does not mean that search protocols would be mandated in all cases; protocols would be approved on a case-by-case basis.

Ex ante review of the Government’s procedures to search ESI has advantages. First, it can minimize the need for ex post review of those procedures, which is often contentious as parties debate motions to suppress evidence in criminal cases. Second, it allows a magistrate judge to closely work with the Government to ensure its preferred procedures do not violate the Fourth Amendment. Third, it can promote the development of case law that can distinguish permissible and impermissible procedures to better protect Fourth Amendment rights. Finally, it could prevent situations where certain file locations are authorized for search by warrant, but the practical implications of that authorization create a general warrant without the magistrate judge’s knowledge.

Ex ante review is a flexible system where the magistrate judge can balance the needs of an investigation and the demands of the Fourth Amendment. Certain procedures may be found inappropriate in certain contexts depending on the extent of probable cause the Government has, but that is distinct from mandating that the Government follow a specific procedure. Ex ante review is flexible enough that the Government can opt to apply for a warrant with no procedures or minimization and still be approved.

However, in such cases the Government should demonstrate that the level of probable cause to search ESI is high enough to justify a search without minimization. Additionally, even if a no-protocol approach is appropriate at the outset, it is recommended the Government return to the reviewing judge to confirm that searching the ESI without a protocol is appropriate after the investigation proceeds far enough for that information to become available.

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