Post details: CA11: 25 day delay in getting SW after revo of consent was not unreasonable here

12/12/12

Permalink 07:00:57 am, by fourth, 551 words, 324 views   English (US)
Categories: General

CA11: 25 day delay in getting SW after revo of consent was not unreasonable here

Defendant was the subject of a child pornography knock-and-talk, and he consented to the government seizing his computers to look for child porn which he admitted was on his computers. He asked to copy files he needed for school work, and they let him. The next day, his attorney wrote the FBI and revoked his consent to the search and seizure of the computers, and 25 days later, the FBI submitted a search warrant request to a USMJ who sat on it for another six days because he was in a habeas hearing. On the totality, the 25 days was not an unreasonable seizure. This was a small FBI office, and their delay was not unreasonable considering defendant was given access to the files he needed, and he didn’t ask for me. While his possessory interest was interfered with, it wasn’t unreasonably interfered with. United States v. Laist, 702 F.3d 608 (11th Cir. 2012):

Since there is no "per se rule of unreasonableness," McArthur, 531 U.S. at 331, the devil, as always, is in the details. The essential question boils down to this: whether the 25-day delay in this case was unreasonable. We hold that it was not. Initially, there is no doubt that Laist retained a significant possessory interest in his computer and his hard drives. See Mitchell, 565 F.3d at 1351. The interference with Laist's possessory interest was not insubstantial, inasmuch as the FBI held his computer and hard drives for 25 days without his consent.

However, Laist's possessory interest in the contents of these possessions was diminished for several reasons. First, the district court found that Laist was afforded the opportunity to remove "whatever he wanted to download" from the computer and hard drives, and, notably, Laist did in fact remove files he needed for school. As the district court put it, "It is my understanding from the evidence that there was no limitation about this ... . [I]t [i]s clear from the record that if he wanted to take other things off at the time he also could have done that." Since the possessory interest in a computer derives from its highly personal contents, the fact that Laist had a real opportunity to copy or remove personal documents reduces the significance of his interest. Indeed, although Laist revoked consent on March 12, 2009, he did not request any additional files prior to the time the FBI obtained the search warrant on April 13, 2009, and there is no indication in this record that the FBI would have denied a request to retrieve additional non-contraband material on the computer. In the second place, Laist not only admitted to the presence of illicit images on the computer, which standing alone already diminishes his possessory interest, see Mitchell, 565 F.3d at 1351, he actually showed an image of child pornography to the FBI agents during the course of the interview. This fact both diminishes Laist's interest further while also enhancing the government's legitimate interest in maintaining custody of the computer and hard drives as substantial evidence of a serious federal crime.

Nevertheless, since Laist retained a possessory interest, albeit a diminished one in his computer, the Fourth Amendment still obligated the United States to "diligently obtain[] a warrant." McArthur, 531 U.S. at 334. On this record, we are convinced the government acted diligently, and thus reasonably, based on several critical facts. ...

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