A.F.Ct.Crim.App.: SW could distinguish between seizure of hard drive and search of the information without going stale before later data search

The search and seizure warrant for seizure of computers and hard drives was timely served, but the data was not searched until after the 90 days expired. This was not a violation of the warrant because the warrant distinguished between seizure of the hardware and the data which could be searched later. Moreover, inevitable discovery supported it under Mil. R. Evid. 311(b)(2). The military judge erred in suppressing. United States v. Cote, 2010 CCA LEXIS 186 (A.F. Ct. Crim. App. April 6, 2010):

The warrant clearly distinguishes three types of material: electronic devices, storage media, and electronic data. As stated in the addendum to the warrant, the 90-day time limit for searches clearly applies only to seized devices and media, not the data on such devices and media: “The search of any Electronic Device or Storage Media authorized by this warrant shall be completed within 90 days from the date of the warrant unless, for good cause demonstrated, such date is extended by an order of the Court.” Emphasis added. Highlighting this distinction between devices, media, and data, the warrant later authorizes retention of devices and media that contain contraband but directs the return of copies of data on such devices and media that do not contain contraband.

This construction of the warrant is consistent with the view that computer searches are a “two-step process” of first seizing devices and media and then later searching the data. Wayne R. Lafave, Search and Seizure, § 4.7 (4th ed. supp. 2009-10) (citing Kerr, Search Warrants in an Era of Digital Evidence, 75 MISS. L.J. 85, 86 (2005)). Indeed, in her ruling the military judge recognized the routine practice of law enforcement to make forensic copies of computer data for later analysis, but then mistakenly applied the 90-day restriction to that copied data. Consistent with routine practice, SA SH lawfully copied and stored the electronic data from the Sony and HP storage media onto government servers within the time specified in the warrant. His later analysis of that data in the forensic copies did not violate the warrant’s 90-day time limit for searches of electronic devices or media seized from the appellee.

This construction is also consistent with the settled view that, contrary to the military judge’s conclusion, no reasonable expectation of privacy exists in copies made of lawfully seized data. …

Defendant was arrested for child enticement involving an Internet sting with a fake underage girl. His consent to search his computer and dormitory room on base was voluntary. United States v. Koebele, 2010 CCA LEXIS 208 (A.F. Ct. Crim. App. May 19, 2010) (unpublished).