This is a child pornography case. The search warrant was a cut-and-paste from a child porn warrant but the warrant was for evidence of witness tampering on a computer. Child porn was found. The result was a warrant that failed the particularity clause of the Fourth Amendment, the state constitution, and state statute, and the court suppresses despite the defendant being completely “unsympathetic”. Wheeler v. State, 2016 Del. LEXIS 121 (March 2, 2016):
Warrants “must be tested by courts in a commonsense and realistic fashion,” and reviewing courts should avoid a “hypertechnical approach.” The majority of Federal Courts of Appeals have rejected the suggestion of requiring specific computer search protocols. For example, in United States v. Richards, the Court of Appeals for the Sixth Circuit observed that:
[G]iven the unique problem encountered in computer searches, and the practical difficulties inherent in implementing universal search methodologies, the majority of federal courts have eschewed the use of a specific search protocol and, instead, have employed the Fourth Amendment’s bedrock principle of reasonableness on a case-by-case basis: While officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant, … a computer search may be as extensive as reasonably required to locate the items described in the warrant based on probable cause.
Some irrelevant files may have to be at least cursorily perused to determine whether they are within the authorized search ambit. Accordingly, the proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation.
Further, the propensity of criminals to disguise files must be balanced against the competing interest of avoiding unrestrained general searches: “It is unrealistic to expect a warrant to prospectively restrict the scope of a search by directory, filename or extension or to attempt to structure search methods—that process must remain dynamic.” “[I]t is clear that because criminals can—and often do—hide, mislabel, or manipulate files to conceal criminal activity, a broad, expansive search of the hard drive may be required.” Consequently, it would likely unduly restrict law enforcement to require the crafting of specific keyword searches or identification of file names and extensions ex ante. In some instances, the technological reality may be that, “in the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files.” “[N]o tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision.”
This Court has addressed Fourth Amendment challenges in the digital context on two occasions. But in neither case did we confront directly a challenge that a warrant seeking digital information failed to satisfy the particularity requirement in the United States and Delaware Constitutions.
. . .
C. The Witness Tampering Warrants Were General Warrants and Violated the Particularity Requirement
1. The Witness Tampering Warrants Have No Temporal Limitations, Despite Relevant Dates Being Available to the PoliceA key principle distilled from the jurisprudence in this area is that warrants, in order to satisfy the particularity requirement, must describe what investigating officers believe will be found on electronic devices with as much specificity as possible under the circumstances. That principle simply was not followed here in several respects. One obvious respect was the failure to limit the search to the relevant time frame. Federal Courts of Appeals have concluded that warrants lacking temporal constraints, where relevant dates are available to the police, are insufficiently particular. Our sister courts have similarly considered temporal restrictions in the context of the particularity requirement. Ultimately, “[i]t is settled law that generic classifications in a warrant are acceptable only when a more precise description is not possible.”
We hesitate to prescribe rigid rules and instead reiterate that warrants must designate the things to be searched and seized as particularly as possible. Striking the correct balance when protecting against generality and overbreadth requires vigilance on the part of judicial officers who are on the front lines of preserving constitutional rights while assisting government officials in the legitimate pursuit of prosecuting criminal activity. Where, as here, the investigators had available to them a more precise description of the alleged criminal activity that is the subject of the warrant, such information should be included in the instrument and the search and seizure should be appropriately narrowed to the relevant time period so as to mitigate the potential for unconstitutional exploratory rummaging.
The State conceded that nothing relating to NK would be found on Wheeler’s property identified in the Witness Tampering Warrants. And the Affidavits do not suggest otherwise. As to the only other potential victims, the W brothers, the Affidavits indicate that the alleged witness tampering occurred, if it did, in or after July 2013, since that was when the W brothers renewed contact with Wheeler. The Affidavits contain no facts suggesting that any tampering might have occurred prior to July 2013. Yet, the Witness Tampering Warrants were boundless as to time. Sergeant Perna testified that one of the first things he did in executing the search was determine when the iMac was last used. Proceeding under the Witness Tampering Warrants, he determined that the computer had last been powered on in September 2012. However, the State unsystematically sifted through Wheeler’s digital universe, even though the iMac logically could not have contained material created or recorded during the relevant time period.
A failure to describe the items to be searched for and seized with as much particularity as the circumstances reasonably allow offends the constitutional protections against unreasonable searches and seizures. Because the State was able to more precisely describe the items to be searched and seized, the Witness Tampering Warrants violated the particularity requirement.
2. The Witness Tampering Warrants Likely Fail the Particularity Requirement for Other Reasons
. . .
III. CONCLUSION
The subject of this prosecution is an unsympathetic figure. And the sexual exploitation of children is a dreadful scourge in our society. But “[t]he principles laid down in this [O]pinion affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case before the court …; they apply to all invasions on the part of the government and its employe[e]s of the sanctity of a [person’s] home and the privacies of life.” “There is always a temptation in criminal cases to let the end justify the means, but as guardians of the Constitution, we must resist that temptation.”
