In an electronic search, the government copied the device’s memory for later search, and the probable cause did not get stale during the delay. Because of the capacity of electronic devices, this is the most efficient manner of searching. United States v. Chenguang Gong, 2024 U.S. Dist. LEXIS 223050 (D. Mass. Dec. 10, 2024):
Defendants’ complaints are not novelties in the world of computer age search warrants. Given the advent of virtually unlimited computer and iPhone storage capacity, searches of electronic devices present unique issues regarding data retention, and the modes of execution of the search of an electronic database. Considering the impracticalities of conducting a forensic examination of such data in a person’s home or office, the creation of a mirror image of a suspect computer’s hard drive has become a common practice and one that is expressly permitted by Fed. R. Crim. P. 41(e)(2)(B) (as amended in 2009). The Rule 41 fourteen-day window during which the warrant must be executed, however, “refers to the seizure or on-site copying of the media or the information and not to any later off-site copying or review.” United States v. Ganias, 755 F.3d 125, 135 n.10 (2d Cir. 2014), aff’d on an independent ground, 824 F.3d 199, 220-221 (2d Cir. 2016) (en banc); United States v. Aboshady, 951 F.3d 1, 6-7 (1st Cir. 2020) (while noting that a protracted delay in conducting a review might risk the dissipation of probable cause for a continued search, the First Circuit saw no reason to place bright-line limits on the time taken by the government to complete its analysis of seized material, even though, as in Aboshady, that might take years). Here defendants make no convincing argument that probable cause dissipated in the thirty-months or so that the government took to filter the emails to identify content subject to seizure. That being so, despite defendants’ best efforts to distinguish Aboshady, it is the controlling law in this Circuit.
To the extent that defendants are challenging the integrity of the filtering process employed by the executing agents in separating incriminating from innocent or irrelevant emails, the answer is straightforward. Despite efforts to the contrary of some very computer literate judges, at the end of the day the judiciary’s task is to attend to matters of particularity and probable cause—the manner of executing computer-based warrants of the kind issued in this case are generally beyond judicial competence.
By way of illustration, now retired Judge Alex Kozinski, in a concurring opinion, attempted to provide “guidance” to magistrates faced with the task of authorizing searches of massive quantities of electronically stored data in United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1178-1180 (9th Cir. 2010) (en banc). His clarion call, however, fell mostly on skeptical ears. See United States v. Mann, 592 F.3d 779, 785 (7th Cir. 2010) (finding Judge Kozinski’s guidance “efficient but overbroad”); United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009) (despite efforts to establish ex ante search protocols for computer drives to limit “overseizures,” given the capacity of a computer to store and intermingle vast amounts of data, at bottom “there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders”); United States v. Stabile, 633 F.3d 214, 239-240 & n.13 (3d Cir. 2011) (same); United States v. Richards, 659 F.3d 527, 539 (6th Cir. 2011) (same).
The Massachusetts Supreme Judicial Court may have best expressed this court’s thoughts on the matter. (“‘Advance approval for the particular methods to be used in the forensic examination of the computers and disks is not necessary. … Indeed, the judge or officer issuing the warrant likely does not have the technical expertise to assess the propriety of a particular forensic analysis.'” Preventive Med. Assocs., Inc. v. Commonwealth, 465 Mass. 810, 830, 992 N.E.2d 257 (2013) (quoting Commonwealth v. McDermott, 448 Mass. 750, 766, 864 N.E.2d 471 (2007)).
The Supreme Court has said much the same thing, albeit in different context, addressing the alleged improper execution of a no-knock warrant and the unavailability of suppression as a remedy for any police excesses in executing the warrant. “This is not to say that the Fourth Amendment speaks not at all to the manner of executing a search warrant. The general touchstone of reasonableness … governs the method of execution of the warrant. Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression.” United States v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998). Cf. Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979) (“[I]t is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant — subject of course to the general Fourth Amendment protection ‘against unreasonable searches and seizures.'”).
