C.D.Ill.: In a computer search warrant for passport fraud, looking at video files violated the Fourth Amendment

Computer technology being what it is, it is well known now that searches can be confined to the scope of search provided for by the warrant. Here, the computer search warrant was for evidence of passport and identity theft, and there is no reason why video files had to be rummaged through. That violated the scope of the warrant and the Fourth Amendment. The motion to reconsider prior denial of the motion to suppress is granted, as is the motion to suppress. United States v. Schlingloff, 2012 U.S. Dist. LEXIS 157272 (C.D. Ill. October 23, 2012):

By opening the “Vicky” files flagged by the KFF alert, McNamee knew or should have known that those files would be outside the scope of the warrant to search for evidence of passport fraud or identity theft, particularly as the warrant did not specifically refer to evidence found in video files. In this respect, the facts of this case are distinguishable from either United States v. Burgess, 573 F.3d 1078, 1092 (10th Cir. 2009) or United States v. Wong, 334 F.3d 821 (9th Cir. 2003), both of which are cited favorably in Mann, where the files were opened inadvertently in the normal course of the search.

Additionally, in light of the admitted ability to confine the FTK search by not enabling the KFF filter for child pornography alerts, the Court finds that Agent McNamee took an affirmative additional step to enable the KFF alerts that would identify known child pornography files as part of his search for evidence of passport fraud or identity theft. In a case where the professed subject matter sought in the search bore no resemblance to child pornography, it is difficult to construe this as anything other than a deliberate expansion of the scope of the warrant, or at the very least, an affirmative step that effectively did so.

Given the ever increasing state of technology and consequently, technology related crimes, the Court finds that this issue is not going to go away, and in fact, will likely become more prevalent and finely contoured. Digital images or files can be located nearly anywhere on a computer and “may be manipulated to hide their true contents.” 592 F.3d at 782-83, citing United States v. Hill, 459 F.3d 966, 978 (9th Cir. 2006). Accordingly, more comprehensive and systematic searches have been found to be reasonable. See United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 1006)(finding that a computer search may be as extensive as reasonably required to locate the items described in the warrant.) Nevertheless, it is also important to note that there is normally no fear of degradation or dissipation of evidence or a rapidly evolving situation requiring the need to “shoot from the hip” in examining seized computer files without a proper warrant. United States v. Seiver, 692 F.3d 774, 777 (7th Cir. 2012). In fact, Judge Posner recently noted that the doctrine of staleness has taken on new contours as a result of technological advancements and the importance of employing a “realistic understanding of modern computer technology” when evaluating Fourth Amendment challenges to computer searches. Id., at 778.

The promise of the Fourth Amendment to be free from unreasonable searches and seizures contemplates a warrant that sets forth with specificity the area to be searched and the subject matter of the search. So if a warrant authorizes an officer to look in all files on a computer, should the courts care how it is done? This Court believes so.