Computers and plain view

The seizure of defendant’s laptop computer in this child pornography case was reasonable under the plain view doctrine. The child’s information said that there was child pornography on the computer and it needed to be seized rather than left behind because defendant could alter it if he learned about the investigation before the search warrant was issued. Also, the child had free access to the computer, and she could consent to its search and seizure. There was a little bit of plain view search of the computer too, but it was not outcome determinative. United States v. Vallimont, 378 Fed. Appx. 972 (11th Cir. 2010) (unpublished):

First, we reject Vallimont’s claim that the seizure of his computer was unconstitutional. Seizure of a container, pending issuance of a warrant to examine its contents, is permitted where there is (1) probable cause to believe that it holds contraband or evidence of a crime and (2) if the “exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” United States v. Place, 462 U.S. 696, 701, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). …

Coincidentally, today’s The Legal Intelligencer: Do Computer Searches Distort the ‘Plain View’ Doctrine? by Leonard Deutchman, analyzing four computer search cases:

But application of the plain view exception when computers are being searched poses challenges to the doctrine.

The requirement that the viewer must be near what is being viewed imposed physical restrictions to the doctrine, but with a computer search, those physical limitations disappear.

The officer who has stopped the driver for ignoring the stop sign could view only the area immediately around the car, posing no worry to the courts later reviewing the officer’s conduct that the officer could have somehow easily segued into searching the driver’s bedroom miles away, for example. Given, however, the hundreds of thousands of files that can easily be stored on a computer, and the manner in which a computer search is conducted — looking for keywords, for example, across all files — a computer search is akin to an officer walking into the foyer of a mansion and being able to see in plain view every person and object in the entire structure. Under those circumstances, a search for files pertaining to one crime will often, and easily, yield evidence of wholly unrelated crimes.

How, then, should the plain view doctrine apply to computer searches?

Different courts have provided different answers.