S.D.Cal.: Willful violation of computer search protocols required suppression

Willful violation of the computer search protocols of searching within 120 days required suppression of the search of records from defendant’s house. Defendant was a Border Patrol Union rep, and was a retired Border Patrol agent. Also, the computer searchers chose to search outside the terms of the warrant to look at adult pornography on the computer. United States v. Bonner, 2013 U.S. Dist. LEXIS 103087 (S.D. Cal. July 23, 2013):

There is no language in the Application, the Affidavit, or the Order which would put the Magistrate Judge on notice that the examination of pornographic images for a time and date stamp was contemplated by the Application. There is no language in the Application, the Affidavit, or the Order which would put the Magistrate Judge on notice that she was authorizing the examination and extraction of thousands of images of adult pornography from the imaged data.

The Procedures in the Warrant specifically provided: “All forensic analysis of the imaged data will employ search protocols directed exclusively to identification of data within the scope of this warrant.” (ECF No. 34-3 at 16). “The reasonableness of a search or seizure depends not only on when it is made, but also on how it is carried out.” Franklin v. Foxworth, 31 F.3d 873, 875 (9th Cir. 1994); see also United States v. Adjani, 452 F.3d 1140, 1149 (9th Cir. 2006) (“We understand the heightened specificity concerns in the computer context, given the vast amount of data they can store.”). The search protocol employed must be reasonably directed to identify data within the scope of the warrant in order to meet the particularity requirement. Without this requirement, the search of the electronic data becomes “general exploratory rummaging in a person’s belongings.” Sears, 411 F.3d at 1127. In Comprehensive Drug Testing, Inc., the Court of Appeals explained:

We recognize the reality that over-seizing is an inherent part of the electronic search process and proceeds on the assumption that, when it comes to the seizure of electronic records, this will be far more common than in the days of paper records. This calls for greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the rights of individuals to be free from unreasonable searches and seizures. The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect.

Comprehensive Drug Testing, Inc., 621 F.3d at 1177. In this case, employing a protocol to search items with a date and time stamp in order to examine and extract pornographic images expanded the search to data which the Government had no probable cause to collect. A fair reading of the warrant did not include authorization to seize any item in Defendant’s residence with a date and time stamp or authorization to seize photographic images marked with a date and time stamp. The Court concludes that the forensic analysis employed search protocol not directed to identify data within the scope of the warrant and violated the Defendant’s rights under the Fourth Amendment.

Also, the person who is the target of a search warrant has a right to see it, which the federal officers serving it were completely unaware of. Nevertheless, “[e]ven assuming that the agents made a legal error when they did not present the search warrant at the outset, the mistake had no material effect on Defendant’s rights and there are no facts to support the application of the exclusionary rule under these circumstances. Defendant’s motion to suppress seized evidence from residence (ECF No. 24) is denied.”