State liquor control and local and state police officers conducted a raid on a frat house, and they detained all underage persons without cause to believe that they were drinking. The detention was unconstitutional. Commonwealth v. Mistler, 590 Pa. 390, 912 A.2d 1265 (Pa. 2006):

Similarly, this Court has upheld such suspicionless searches and seizures in the following contexts: (1) vehicle checkpoints, see, e.g., Blouse, 611 A.2d at 1179 (holding that suspicionless vehicle stops at fixed checkpoints to detect and remove unlicensed drivers and dangerous automobiles from the road are constitutional); (2) weapons and drugs searches at public schools, see, e.g., In re F.B., 555 Pa. 661, 726 A.2d 361, 368 (Pa. 1999) (deeming constitutional suspicionless point-of-entry search for weapons at public school); Cass, 709 A.2d at 365 (finding that suspicionless canine-sniff drug search of student lockers at public school does not violate Article 1, Section 8 of the Pennsylvania Constitution); but see Theodore v. Del. Valley Sch. Dist., 575 Pa. 321, 836 A.2d 76, 91 (Pa. 2003) (invalidating, under the state Constitution, the random drug testing of extracurricular participants and student drivers, where the record contained no evidence that a drug problem existed at the school or that the targeted group was particularly prone to drug use).

Having identified the framework necessary for our analysis, we now turn to a consideration of whether the search at issue satisfies its requirements. The Commonwealth argues that, upon balancing these three factors, it is clear that such a general search is legal and that suppression should be denied. We disagree.

As to the first prong, the interference with individual liberty was significant. Students who paid to attend the party entered the fraternity house with the reasonable expectation that they would be able to leave at will. Nevertheless, that reasonable expectation was frustrated when the LCE officers detained students under the age of twenty-one.

Next, we must assess the degree to which the seizure advanced the public interest. Certainly, the public has an interest in deterring underage consumption of alcohol. This is evident by, inter alia, the Pennsylvania statute outlawing such behavior. 18 Pa.C.S § 6308. Yet we see no evidence, and the Commonwealth has presented none, that the methods employed in this case are more effective in reducing underage drinking than a myriad of other available options.

Finally, we must address the gravity of the public concern served by the seizure. The United States Supreme Court has held that it would not deem the "general interest in crime control" as a justifiable reason for a regime of suspicionless stops; it has not condoned suspicionless searches where the program is aimed at uncovering evidence of ordinary criminal wrongdoing. City of Indianapolis, 531 U.S. at 42. In the instant case, we can identify no factor that elevates the level of public concern regarding underage drinking beyond that of "a general interest in crime control." The Commonwealth, in its efforts to justify the seizure, presents no evidence that prosecution of underage drinkers qualifies as one of the few areas of criminal wrongdoing for which a regime of suspicionless stops should be deemed constitutional.

. . .

Given the absence of such a paramount public interest in the instant case, we believe that the suspicionless stop sub judice violated both the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution. The conduct of the LCE officers and the WCP does not comport with constitutional requirements as it failed to address an area of paramount importance. Rather, the actions of the officers were geared toward general crime control and the discovery of ordinary criminal wrongdoing, which the United States Supreme Court has deemed insufficient to justify a suspicionless stop. City of Indianapolis, 531 U.S. at 42. Such acts, absent a cause of heightened importance to the citizenry of the Commonwealth, cannot support a suspicionless detention.

The officer had reasonable suspicion to stop the defendant for a fictitious license plate, but, as he walked up to the car, he realized that he misread the license plate, and it was not fictitious. The defendant should have been free to leave at that point. State v. Cromes, 2006 Ohio 6924, 2006 Ohio App. LEXIS 6846 (3d Dist. December 28, 2006).

Comparing defendant's DNA to the CODIS database is not an unreasonable search and seizure. State v. Cannon, 2006 Tenn. Crim. App. LEXIS 994 (December 27, 2006).*

In a March 31 post appears this:

In an unpublished opinion, the Houston TX Court of Appeals held that defendant's girlfriend had apparent authority to consent to the search of a nonpassword protected computer that both of them used, even though the computer belonged to the defendant. Hebert v. State, 2006 Tex. App. LEXIS 2539 (Houston (14th Dist.) March 30, 2006).

The opinion was substituted and published with the same result at Hebert v. State, 2006 Tex. App. LEXIS 11070 (Tex. App. — Houston (14th Dist.) December 28, 2006):

Appellant's brief concedes that Fridell had authority to consent to a search of the trailer's common areas, and challenges only her authority regarding the non-common areas, such as appellant's office and computer. However, appellant's brief cites no cases to support a contention that separate and/or greater authority would be required for non-common areas, either generally or under circumstances similar to those in this case. In addition, appellant's issue does not challenge the evidence supporting the trial court's statements but only its legal conclusion that those facts amount to actual (or apparent) authority in that: (1) there is no evidence that Friddell was a party to the rental or ownership of the trailer; (2) Friddell testified that appellant used the third bedroom as his office and the computer there belonged to him; (3) appellant had the right to exclude Friddell from entering his office or using his computer there; (4) there is no evidence that appellant gave Friddell express or implied consent to enter his office or use his computer; and (5) Friddell testified that she had never used the computer without appellant being present. However, appellant cites no cases reaching a contrary conclusion on the issue of actual authority on facts resembling those relied upon by the trial court, nor does he cite any cases concluding that actual authority was lacking due to factors similar to those he relies upon to preclude a finding of actual authority.

Because: (1) the supported-by-the-record facts recited by the trial court show that Friddell had "joint access or control for most purposes" to the trailer premises; and (3) the factors relied upon by appellant show, at most, a lack of equal, but not joint, access or control over the office or computer, we conclude that appellant's issue fails to demonstrate that the trial court erred in denying his motion to suppress. Therefore, appellant's issue is overruled, and the judgment of the trial court is affirmed.

When the police want to seal part of a search warrant application to protect the identity of their informant, they cannot keep the original in the police department. It is a judicial record that belongs to the court. People v. Galland, 146 Cal. App. 4th 277, 52 Cal. Rptr. 3d 799 (4th Dist. December 28, 2006):

The instant case presents a vivid example of why our courts are the preferred record keepers in judicial proceedings. Hankins presented a search warrant with supporting affidavit to the magistrate on August 9, 2001. In 2006, without the benefit of the original warrant affidavit or authenticated copy retained by the superior court, the parties seek this court's independent review of the magistrate's probable cause determination and the trial court's subsequent rulings on motions to suppress and for discovery. The documents included in the appellate record are too far attenuated from the magistrate's determination of probable cause to serve as a legitimate basis for any decision on the warrant's validity. The events subsequent to the magistrate's determination, Hankins retention of the crucial part of the warrant affidavit, the court's initial handling of the hearing on Galland's motions to disclose that document, and its subsequent and belated review, which yielded an entirely new page to add to it, provides no reasonable belief in the authenticity of any of the documents not retained by the court after the filing of the return.

The most important part of a search warrant is the affidavit of probable cause. Without good reason, Hankins and his department retained the original affidavit, which no longer exists because of that agency's actions, and the appellate record supplies scant evidence on which this court can place its confidence in what is included in the record. How much more disturbing to the average citizen to discover the law enforcement agency involved in a criminal case retained the document that provided legal justification for a search of home, possessions, and person. Human nature precludes an unquestioning faith in a legal procedure that cannot guarantee objectivity and proper respect for important documents. Public confidence in our judicial system is founded on its ability to serve as a neutral player in the proceedings before it. Reliable record keeping is a basic component of public trust.

A search incident to a warrant is a governmental invasion of individual liberty and property. The abuse of that process led to the adoption of the Fourth Amendment and legislation prescribing mandatory procedures to be followed when a warrant is issued and thereby given judicial sanction. (Sgro v. United States (1932) 287 U.S. 206, 210.) Essential to this protection is the state's ability to ensure the authenticity of the supporting affidavit of probable cause. Simply having any judicial officer review an affidavit of probable cause at any point in the criminal proceedings and then conclude the magistrate must have reviewed the same document provides no such assurance. When a police officer submits a written affidavit of probable cause, the issuing magistrate assumes the responsibility of ensuring probable cause existed for the search. It would be much easier to shoulder this responsibility if the magistrate ensures the original affidavit in its entirety is timely filed with the court clerk. We find support for our conclusion in the various statutes governing search warrants.

. . .

We are aware of the practical concerns generated by requiring the magistrate to ensure the entire search warrant affidavit, including any portion ordered sealed, be timely filed with the superior court clerk. Police officers frequently need to secure a search warrant in the middle of the night. Magistrates often live miles from the closest branch of the superior court. The press of work may prohibit the officer affiant from waiting at the courthouse door to file documents. Nevertheless, the entire warrant affidavit becomes a court document when it is presented to a magistrate in support of a search warrant. From then on, the document is a matter of public record to be treated like a public record. It is not evidence of guilt to be produced in a subsequent criminal trial and therefore properly retained by the investigating law enforcement agency. Consequently, to avoid the constitutional and statutory violations that occurred here, the affiant officer must also ensure the entire warrant affidavit, including any portion ordered sealed by the magistrate, is filed with the clerk of the superior court at the officer's earliest opportunity.

No expectation of privacy in a stolen truck in the defendant's driveway. United States v. Malady, 209 Fed. Appx. 848 (10th Cir. 2006)* (unpublished).

Defendant's girlfriend had apparent authority to consent. She left the premises intending not to return but did. She actually consented while not physically there during the hiatus, but that was not fatal to consent. United States v. Ryerson, 2006 U.S. Dist. LEXIS 93244 (W.D. Wisc. December 22, 2006):

Ryerson contends that Lawicki possessed neither actual nor apparent authority to consent to a search of 911 Gillette Lane. Ryerson is incorrect. Lawicki almost certainly had actual authority to consent to the searches. She had lived in the house with Ryerson and their child continuously for over ten months prior to the first search. Lawicki had left for her mother's with the baby on February 5, 2006 with the stated intent not to return, but in fact she changed her mind and she did return to the area to retrieve the baby from Ryerson. Because Lawicki was scared of Ryerson and his minions, she did not stay in the house between February 5-10, but this does not establish that it was not still her residence. After all, Ryerson didn't stay there between February 5 - 10 either; during the relevant time period the house was unoccupied. n2 There was no legal or physical impediment to Lawicki continuing to live at 911 Gillette during this time; she simply chose not to do so. Therefore, I conclude that Lawicki had actual authority to consent to the searches on February 9 and 10, 2006.

Two police officers in the same department cannot conspire to violate civil rights under § 1983. Magee v. City of Daphne, 2006 U.S. Dist. LEXIS 93183 (S.D. Ala. December 20, 2006).*

A Fourth Amendment claim litigated on direct appeal cannot be reviewed on a § 2255 claim. United States v. Figueroa, 2006 U.S. Dist. LEXIS 93218 (D. Nev. December 20, 2006).

In the ongoing Major League Baseball steriod use investigation, the government served subpoenas for drug testing records. When it became obvious that the subpoenas would be challenged for overbreadth, it issued a narrower subpoena. Just as the production date arrived, the government sought search warrants from USMJs in California and Nevada for the same records. The MLB Player's Association sought return of the records. Calling the challenge to the search warrant a "farrago of arguments," the court held that the search warrants were valid. This is a wide ranging opinion that will have an affect on computer searches in general applying the overbroad records search case of United States v. Tamura, 694 F.2d 591 (9th Cir. 1982), to computer searches. United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915 (9th Cir. December 27, 2006) (2-1 decision; free link at case name, in two volumes on court's website). There are a substantial number of arguments, but this is the gist, starting with the conclusion:

The summary:

VII

We now summarize the resolution of these consolidated appeals. We conclude that the government's seizures were reasonable under the Fourth Amendment, and that the district courts erred in ruling that Fed. R. Crim. P. 41(g) required return of all property and agent review notes unrelated to the ten expressly named Balco players.

At the same time, we recognize limits to the government's right to retain evidence seized, even where a broad seizure is reasonable in order to avoid lengthy and intrusive on-site inspection. Our Fourth Amendment precedents explain that the government may retain single "ledgers" of intermingled evidence, but may not keep separate, unrelated evidence. A magistrate is in the best position to sort through the actual evidence and to determine those files that may be kept when aggrieved parties seek relief. Readily separable evidence unrelated to persons named in the search warrants must be returned. The Fed. R. Crim. P. 41(g) cases must be remanded to the District of Nevada and Central District of California to permit such review of the sealed documents by magistrates.

With regard to the May 6 subpoenas, which covered the same evidence as the contemporaneous search warrants, we conclude the order of the Northern District of California quashing the subpoenas was an abuse of discretion. The record, illuminated by caselaw, reveals that the subpoenas were not unreasonable and did not constitute harassment.

Therefore, the orders of the Central District of California, the District of Nevada, and the Northern District of California cannot stand. The three cases consolidated in this appeal are hereby

REVERSED in part and REMANDED in part.

The MLB Player's Association had standing to challenge the search warrants on behalf of its members.

As to the use of a search warrant, there was no constitutional need to show that there would be a destruction of records before a search warrant could issue to a third party for evidence under Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978). The government merely asserted that it was encountering a delay of the investigation. Also, the government did not misrepresent to the court below that a subpoena had been issued.

There was a seizure of intermingled records of some players who were outside the scope of the warrant, but this did not show bad faith. The government brought along a computer analyst to make sure at the scene that the seizure was as narrow as possible. Because another agent who was not a computer expert also viewed the records, this was not a constitutional violation.

The government also copied files on the drug testing company's computer rather than continue to search it on site for the purpose of not disrupting the operations of or inconveniencing the company during the search. A key word search was not constitutionally required when the government searched the files.

In light of these considerations, we conclude that the government properly considered and respected the privacy interests, intrusiveness, and law enforcement needs posed by the searches in question by removing a copy of the Tracey [computer] directory (not the original) and taking only limited diskettes and documents containing relevant information. In seizing these files, the government did not show "callous disregard for the constitutional rights of the movant," Ramsden, 2 F.3d at 325, but instead displayed attentiveness both to the warrant's precautionary procedures and to the importance of avoiding unnecessary disruption of CDT's business operations. For these reasons, we conclude that the first prong of the Ramsden analysis (the existence of "callous disregard") weighs against invocation of the district court's equitable jurisdiction over the Fed. R. Crim. P. 41(g) motions. The district courts' conclusions to the contrary were based on faulty conclusions of law and unsupported assertions of fact. They cannot survive appellate review.

We turn now to the merits of the substantive rulings issued by Judge Cooper and Judge Mahan that ordered return of all property other than evidence directly related to the ten players named in the search warrants.

A

With respect to property taken during search warrants, Fed. R. Crim. P. 41(g) provides that a person who is deprived of property may move for its return. When such a motion is granted, the property in question must be returned to the moving party, but a court "may impose reasonable conditions to protect access to the property and its use in later proceedings." Id. Although the rule itself does not set a standard for determining when property should be returned to a moving party, an advisory committee note explains that "reasonableness under all of the circumstances must be the test." Fed. R. Crim. P. 41 advisory committee's note.

We have repeatedly held that a Fed. R. Crim. P. 41(g) motion is properly denied if "the government's need for the property as evidence continues." United States v. Fitzen, 80 F.3d 387, 388 (9th Cir. 1996) (internal quotation marks omitted); United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993) (same). The advisory committee note explains: "If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable." Fed. R. Crim. P. 41 advisory committee's note.

It is when the government no longer needs the property as evidence that a presumption arises, giving the owner a right to have the property returned. Fitzen, 80 F.3d at 388. Here, the government already has provided copies of all documents seized, and it states that the remaining evidence is essential to its investigation and prosecution of the distribution of illegal steroids. This legitimate law enforcement purpose makes return of the intermingled evidence improper, as the files were seized legally under the search warrant and our precedent.

Moreover, even in cases where agents seized too much evidence, we have noted that return of property should follow only a particularly egregious violation: "The issue is whether the Government's conduct was sufficiently reprehensible in this [*54] case to warrant this sanction." Ramsden, 2 F.3d at 327. In Ramsden, we refused to impose this extreme sanction on police who had time to obtain a warrant but made no effort to do so and "simply chose not to comply with [their] obligations under the Fourth Amendment." Id. at 325, 327.

Our governing precedent offers no support for a full return of the intermingled evidence. Indeed, both the Beusch and Tamura courts underscored the need for effective criminal law enforcement. Thus, the Beusch court resolved: "As long as an item appears, at the time of the search, to contain evidence reasonably related to the purposes of the search, there is no reason--absent some other Fourth Amendment violation--to suppress it." 596 F.2d at 877. Even the Tamura court--which determined that the agents unambiguously flouted the limits of the search warrant--concluded: "[W]e cannot say, although we find it a close case, that the officers so abused the warrant's authority that the otherwise valid warrant was transformed into a general one, thereby requiring all fruits to be suppressed." Tamura, 694 F.2d at 597.

In Tamura, the government did not seek to use evidence at trial that fell outside the scope of the warrant. Therefore, the court found return of the seized property inappropriate, even though some evidence had been unlawfully taken. In the cases before us today, the government has made clear that it desires to use only information related to the ten named Balco players and to other players who tested positive--and who therefore may have become targets of an expanded grand jury investigation--as a result of intermingled information we have determined was seized lawfully under the warrant. While we agree that some information still retained by the government, at least in duplicate, may fall outside the scope of the warrant, we do not believe a return of the lawfully seized intermingled evidence properly remedies that wrong.

Thus, the district courts erred in granting the Fed. R. Crim.P. 41(g) motions and ordering the government to return all evidence seized from CDT and Quest--and all related notes by agents who reviewed the evidence--that did not relate to the ten Balco players expressly named in the search warrants.

B

We are persuaded that the government's seizure of intermingled evidence for off-site review was lawful and reasonable, and we view the two orders requiring return of all property related to players not specifically named as both unjustified and improper. However, the government has yet to comply with its duty of adequate off-site review. Tamura offered a suggested procedure for review by a neutral magistrate, and we conclude that such review is necessary to ensure that the seizure of intermingled computer records remains reasonable.

The Tamura court urged that off-site review be conducted by a magistrate, in order to avoid giving the task to a party with an interest in retaining too much. We cannot accept the government's argument that it may retain all evidence simply because it assured the Players' Association and CDT (without signs of bad faith) that it did not intend to use all the files. In the case of a lawful and reasonable seizure of intermingled computer records for off-site review, as at bar, our precedents and the general reasonableness mandate of the Fourth Amendment require the supervision of a magistrate. It is not reasonable to allow the government to seize an indeterminately bounded array of computer data only later to set its own standards for review and retention thereof.

. . .

It is true that Tamura proposed a pragmatic approach, and not a constitutional rule. We recognize that some courts in other circuits have questioned the procedures advised in Tamura. One district court in Michigan explained: "The Court declines to follow Tamura, at least in this case, because Tamura did not involve computer files and therefore did not consider the specific problems associated with conducting a search for computerized records." Scott-Emuakpor, 2000 WL 288443, at *8. Although declining to apply Tamura's pragmatic approach to computer searches, Judge Quist stated: "This is not to suggest that seizure of all computer disks is permissible whenever the warrant authorizes the seizure of computer records." Id. Another court, also referencing Tamura, noted that in the modern computer context a "'suggestion' by a panel of the Ninth Circuit in a 20-plus year old case is not persuasive." United States v. Kaufman, 2005 WL 2304345, at *4 n.3 (D. Kan).

Like these district courts from other circuits, we recognize that the computer era adds new complexity to the test of reasonableness under the Fourth Amendment. Precisely for this reason, we view Tamura as especially important in the computer context. Although indeed writing over two decades ago, the Tamura court appreciated the same dual--and sometimes conflicting--interests of minimizing the intrusiveness of searches and containing the breadth of seizures. The Tamura court stated that "large-scale removal of material" can be justified "where on-site sorting is infeasible and no other practical alternative exists," Tamura, 694 F.2d at 596, but also advised that a magistrate should oversee the off-site review of documents. We conclude that upon a proper post-seizure motion by the aggrieved parties, the record should be sealed and reviewed by a magistrate--such as the one who originally issued the warrant. This procedure affords the necessary protection against unreasonable retention of property after a seizure of intermingled computer data.

. . .

We conclude that, while the government may seize intermingled data for off-site review to minimize intrusiveness of a computer search, it may not retain or use the evidence after proper objections are raised, unless a magistrate subsequently reviews and filters the evidence off-site. The magistrate must adhere to our precedent in a balanced manner. In her review, the magistrate should apply our precedent, including Beusch, which permits the seizure of single ledgers or files with intermingled data. In the context of computer files, we believe that most seized material scan be pared down considerably, but that certain files--spreadsheets of only a few pages, for example--may be retained in whole.

Finally, the court considered the simultaneous issuance of subpoenas and search warrants and did not find it unreasonable.

V.

Finally, we consider the government's appeal of Judge Illston's order quashing the May 6 subpoenas, which sought drug testing records and specimens for all MLB players who tested positive for steroids.

Under Fed. R. Crim. P. 17(c)(2), a "court may quash . . . [a] subpoena if compliance would be unreasonable or oppressive." The district court found that the May 2004 subpoenas constituted harassment and were unreasonable.

To support its finding, the district court pointed to United States v. American Honda Motor Co., 273 F. Supp. 810 (N.D. Ill. 1967). In American Honda, the government issued subpoenas that were "substantially identical" to one another but in different locations. Id. at 819. As a result, Honda was faced with producing the same documents repeatedly, and the court found this to be harassment. Id. at 819-20. American Honda, however, does not preclude the government from pursuing the same information through the contemporaneous issuance of subpoenas and applications for search warrants.

We addressed the issuance of contemporaneous search warrants and subpoenas in In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d at 854. There we upheld the validity of the subpoenas against the challenge that "the subpoenas were served at the same time as the search warrants and the federal agents attempted to 'enforce' the subpoenas through immediate seizure of the documents." Id. at 854. Noting that the challenge to the subpoenas received no support in precedent, we clarified the differences between subpoenas and search warrants:

"Subpoenas are not search warrants. They involve different levels of intrusion on a person's privacy. A search warrant allows the officer to enter the person's premises, and to examine for himself the person's belongings. The officer, pursuant to the warrant, determines what is seized."

Id. By comparison:

"Service of a forthwith subpoena does not authorize an entry into a private residence. Furthermore, the person served determines whether he will surrender the items identified in the subpoena or challenge the validity of the subpoena prior to compliance."

Id. We concluded that "[t]hese differences are not eliminated by the fact that the search warrants and subpoenas were delivered at the same time" and observed that the complaining party had "failed to show that the papers that are described in the subpoenas are outside the scope of a legitimate investigation by the grand jury." Id. at 854-55. In addition, we specifically emphasized the fact that the defendant was given almost a month to comply with the subpoenas. Id. at 854.

Therefore, the district court erred in finding the issuance of subpoenas and the contemporaneous execution of search warrants to be unreasonable. The Players' Association has not argued that the evidence sought by the subpoenas is "outside the scope of a legitimate investigation by the grand jury." Id. at 855. The subpoenas were not returnable on the same day that the search warrants were executed. As in In re Grand Jury Subpoenas, the return dates on the subpoenas were over a month from the date on which the warrants were executed. The district court declared the May 6 subpoenas an "unreasonable insurance" policy, but it failed to recognize the different purposes and requirements of the warrant as compared to the subpoena and the legitimate concern that production of relevant evidence to the grand jury would be unduly delayed. See id. at 854. It was error to conflate the two distinct tools. Insurance it may have been; but, under the Fourth Amendment, unreasonable it was not.