{"id":4453,"date":"2011-01-11T10:53:04","date_gmt":"2010-07-20T09:19:54","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-07-20T09:19:54","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4453","title":{"rendered":"CA10: Search warrant for computers was clearly invalid because of lack of crime or particularity in search warrant"},"content":{"rendered":"

In a Colorado criminal libel investigation against a college student\u2019s website, the ADA issued a search warrant for the student’s house and his computers were seized. The DA\u2019s office later refused to file a case against him, likely because the website was clearly protected speech. The search warrant violated the Fourth Amendment for lack of a discernable crime and any showing of particularity. Mink v. Knox<\/a>, 613 F.3d 995 (10th Cir. 2010):<\/p>\n

Because a reasonable person would not take the statements in the editorial column as statements of facts by or about Professor Peake, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting search and seizure of Mr. Mink\u2019s property.<\/p>\n

Here, there was no reference anywhere in the warrant to any particular crime, much less to the Colorado criminal libel statute. See Ex. A. The only reference to a crime in the entire warrant was a citation to a portion of the Colorado Rule of Criminal Procedure 41(b), which specified generally:<\/p>\n

A search warrant may be issued under this Rule to search for and seize any property:
\n(1) Which is stolen or embezzled; or
\n(2) Which is designed or intended for use as a means of committing a criminal offense; or
\n(3) Which is or has been used as a means of committing a criminal offense; or
\n(4) The possession of which is illegal; or
\n(5) Which would be material evidence in a subsequent criminal prosecution in this state or in another state …
\nColo. R. Crim. P. 41(b) (2003) (emphasis added).\n<\/p><\/blockquote>\n

The warrant authorized the search and seizure of all computer and noncomputer equipment and written materials in Mr. Mink\u2019s house, without any mention of any particular crime to which they might be related, essentially authorizing a \u201cgeneral exploratory rummaging\u201d through Mr. Mink\u2019s belongings for any unspecified \u201ccriminal offense.\u201d See Campos<\/a>, 221 F.3d at 1147; see also Cassady<\/a>, 567 F.3d at 637 (holding that a warrant permitting \u201csearch for all evidence of any crime [is] invalid.\u201d). No paragraph tied the listed items to any particular crime. The warrant was therefore clearly invalid under the particularity clause of the Fourth Amendment.\n<\/p><\/blockquote>\n

Prior opinion: Mink v. Suthers<\/a>, 482 F.3d 1244 (10th Cir. 2007), cert. denied, 128 S. Ct. 1122 (2008) (no prosecutorial absolute immunity for participating in issuing a search warrant).<\/p>\n","protected":false},"excerpt":{"rendered":"

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