Post details: VT: CDTI followed: Issuing magistrate can impose preconditions on execution of a computer search warrant


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VT: CDTI followed: Issuing magistrate can impose preconditions on execution of a computer search warrant

The judicial officer issuing a computer search warrant can impose preconditions ("ex ante conditions") like in CDT on execution. Here, the conditions are upheld except for the state’s ability to discover things by a valid plain view which is a question of law that should not be abrogated by the warrant. In re Appeal of Application for Search Warrant, 2012 VT 102, 193 Vt. 51, 71 A.3d 1158 (2012):


[*P1] In this complaint for extraordinary relief, we are asked to determine whether a judicial officer has discretion to attach ex ante or prospective conditions to a search warrant. The State petitions this Court to strike ten such conditions pertaining to the search of a personal computer, seized by police as part of an identity theft investigation. The State contends that the conditions exceed the judicial officer's authority under the Fourth Amendment and unnecessarily impede law enforcement's ability to investigate crime. Two amici have filed briefs in opposition to the State's petition, and they argue that the conditions are a valid exercise of the judicial officer's authority and are necessary to protect personal privacy. We grant the petition in part and strike the condition abrogating the plain view doctrine. Because we conclude that the remaining conditions serve legitimate privacy interests, the petition is otherwise denied.

. . .

[*P7] The judicial officer reviewing the request granted a warrant to search the residence and to seize electronic devices to be searched at an off-site facility for as long as reasonably necessary. In a separate order, however, the judicial officer stated only that “[t]he application to search the computer belonging to Eric Gulfield is granted,” and attached conditions: (1) restricting the police from relying on the plain view doctrine to seize any incriminatory electronic record not authorized by the warrant — that is, “any digital evidence relating to criminal matters other than identity theft offenses”; (2) requiring third parties or specially trained computer personnel to conduct the search behind a “firewall” and provide to State investigatory agents only “digital evidence relating to identity theft offenses”2; (3) requiring digital evidence relating to the offenses to be segregated and redacted from surrounding non-evidentiary data before being delivered to the case investigators, “no matter how intermingled it is”; (4) precluding State police personnel who are involved in conducting the search under condition (2) from disclosing their work to prosecutors or investigators; (5) limiting the search protocol to methods designed to uncover only information for which the State has probable cause; (6) precluding the use of specialized “hashing tools” and “similar search tools” without specific authorization of the court; (7) allowing only evidence “relevant to the targeted alleged activities” to be copied to provide to State agents; (8) requiring the State to return “non-responsive data” and to inform the court of this action; (9) directing police to destroy remaining copies of electronic data absent judicial authorization otherwise; and (10) requiring the State to file a return within the time limit of the warrant to indicate precisely what data was obtained, returned, and destroyed.

. . .

[*P15] While the State has argued briefly that Article 11 creates no greater power to issue ex ante instructions as part of the constitutional mandate, and the Defender General argues to the contrary urging us to ground our decision on the Vermont Constitution, this case is fundamentally about the reach of the Fourth Amendment. The judicial officer relied upon Fourth Amendment decisions in imposing the instructions, and the parties have relied upon Fourth Amendment decisions in their arguments to this Court. In part, this is because there are no state constitution precedents. To be sure, we have noted on many occasions that Article 11 “may offer protections beyond those provided by the Fourth Amendment,” State v. Roberts, 160 Vt. 385, 392, 631 A.2d 835, 840 (1993), and this case could involve a variation of this principle. Our first impression, however, is that this case is less about the scope of protections of a constitutional provision and more about the tools available to ensure that protection occurs. Thus, any holding we might ultimately make concerning the scope of Article 11 with respect to ex ante instructions will be based on a new analysis of the protections of that Article. In view of our disposition of the case under the Fourth Amendment, we decline to engage in such an analysis in this case.

[*P16] Nor do we rest our decision on Vermont non-constitutional law. While the State argued that Vermont law does not authorize a judicial officer to impose ex ante instructions, it addressed only Vermont Rule of Criminal Procedure 41. It argued that this criminal procedure rule does not authorize the magistrate to issue instructions on how the search shall be conducted. Although Rule 41 is relevant, neither it, nor the federal rule on which it is based, purport to completely define the scope of judicial power with respect to search warrants. Thus, we are not persuaded on this limited record that Vermont law supports the State's argument and do not consider it further.

. . .

[*P18] We now proceed to the main question before us — whether a judicial officer issuing a warrant has the authority to place ex ante instructions on how a search may be conducted. We have stated the question broadly because the State has challenged the authority of the judicial officer to impose any ex ante instructions, not particularly those in this case. We also emphasize that the general question is one of authority, and not responsibility. No party or amicus is directly claiming that ex ante instructions are ever required, and we certainly do not hold so here.

. . .

[*P20] In creating the instructions, the issuing judicial officer explicitly relied on United States v. Comprehensive Drug Testing, Inc. (CDT I), 579 F.3d 989 (9th Cir. 2009) (en banc). ...

. . .

[*P25] The permissibility of imposing the ex ante instructions on computer searches is a relatively novel question for courts generally. What tools are at the disposal of judicial officers in confronting the challenges presented by searches of electronic media is a real and important question. As one court succinctly put it: “Computers are simultaneously file cabinets (with millions of files) and locked desk drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes. The former must be protected, the latter discovered.” United States v. Adjani, 452 F.3d 1140, 1152 (9th Cir. 2006). We are not called upon to decide today how these conflicting goals are best satisfied. Our question is not whether the judicial officer's attempt to reconcile these objectives was recommendable, much less required. Our question is simply whether this attempt was such a clear abuse of authority as to merit our prohibition in the context of this petition for extraordinary relief.

. . .

[*P26] In this light, we reject the State's invitation to hold that all ex ante restrictions on the execution of a search warrant are universally of no effect in defining the constitutional requirement. Although the historical record is sparse at this point, we see no bright line that allows some conditions, but not ones that specify how law enforcement officials must conduct their search. Indeed, the evidence from Vermont suggests that such ex ante instructions have been used in the past. See discussion supra note 8.

[*P27] We conclude that ex ante instructions are sometimes acceptable mechanisms for ensuring the particularity of a search. According to Professor Kerr's argument, which the State would have us adopt, a judicial officer's only concern ex ante should be with probable cause and particularity, not reasonableness. Kerr, supra, at 1290-91 (“[E]x ante assessment of probable cause and particularity serves a different function than ex ante assessment of how a search should be executed.”). Accepting arguendo that such a bright dividing line exists, ex ante instructions may be a way to ensure particularity. Even in traditional contexts, a judicial officer may restrict a search to only a portion of what was requested — a room rather than an entire house, or boxes with certain labels rather than an entire warehouse. In other words, some ex ante constraints — of the form “here, not there” — are perfectly acceptable. Warrant applications describing the proposed scope of a search are not submitted to the court on a take it or leave it basis.


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