S.D.N.Y.: Preliminary search of electronic device to look for likely places to search was reasonable

A preliminary search of an electronic device under a warrant was permissible to determine what folders on it might be responsive to the search warrant without it being overbroad. United States v. Weigand, 2020 U.S. Dist. LEXIS 158771 (S.D. N.Y. Aug. 31, 2020):

C. Preliminary Search of the Entire Device

Weigand argues that “the [w]arrant made no attempt to limit the scope of the search to the locations on the [d]evices for which there was probable cause to believe evidence of the scheme could be found.” Weigand MTS 13. The Government responds that it must be able to conduct a preliminary search of the entire device to determine which folders, files, and data may be responsive to the warrant. This is analogous to “searches for papers,” for which “it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.” Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976).

Here, the magistrate judge reasonably issued a warrant that permitted threshold searches across the entirety of the devices. Weigand objects that such a review is overbroad given the terabytes of at-issue data and the fact that the devices clearly contained legitimate files of a personal nature, such as folders full of family photos and a folder labeled “private.” To be sure, the Government must reasonably limit its initial search, taking only those steps reasonably necessary to identify documents responsive to the warrant. This is what the affidavit requested and what the warrant permitted. See Aff. ¶¶ 25-27.

Weigand is incorrect to suggest that the review must be limited from the outset to folders that, on their face, might be linked to crime. “[Flew people keep documents of their criminal transactions in a folder marked ‘drug records.'” United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990).