C.A.A.F.: Significant violation of SW expiration date for hard drive warranted suppression

Defendant’s computer was seized in a child pornography investigation, and the search warrant had an expiration date for searching the hard drive of 90 days. Fed. R. Crim. P. 41(e)(2)(B). It was searched a year later. There is no per se rule of exclusion for violating this provision, and trial judge was within her discretion to determine that the search was unreasonable for waiting a year. United States v. Cote, 72 M.J. 41 (C.A. A.F. 2013):

Prior to 2009, Fed. R. Crim. P. 41(e)(2)(A) (Searches and Seizures) required that a warrant to search or seize property be executed within ten days. In 2009, however, the rule was amended, adding section 41(e)(2)(B) which provided, in part, as follows:

(B) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.

This rule reflects a principle also recognized by the judiciary — that courts “[cannot] expect the government to make onsite determinations of whether a file or document contained on a hard drive or in an email account falls within the scope of the warrant.” United States v. Metter, 860 F. Supp. 2d 205, 214 (E.D.N.Y. 2012). For this reason courts have considered seizure of electronic materials and later off-site analysis and review of them to be a constitutionally reasonable “necessity of the digital era.” Id. (citing United States v. Burns, 2008 U.S. Dist. LEXIS 35312, 2008 WL 4542990 (N.D. Ill. Apr. 29, 2008)).

While many circuits have recognized that “[t]he Fourth Amendment does not specify that search warrants [must] contain expiration dates … [or] requirements about when the search or seizure is to occur or the duration,” United States v. Gerber, 994 F.2d 1556, 1559 (11th Cir. 1993), in this case we are dealing with a search warrant in which the judge established just such a requirement.

. . .

While we do not believe that a violation of the ninety-day period mandates per se exclusion of the evidence, we do believe that the violation imposes an additional burden on the Government to show that the violation was either de minimis or otherwise reasonable under the circumstances. …

At trial, the Government did not show any fact which would support the argument that its violation of the warrant’s terms was reasonable under the circumstances. Further, performing a search over a year after the expiration of the search period, without following already established procedures for requesting a new warrant or an extension of the existing warrant, is not a de minimis violation. As a result, we cannot conclude that the Government has met its burden at trial to show that the search comported with constitutional requirements. The military judge did not abuse her discretion in suppressing the evidence found on the WD external drive.

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