N.D.Okla.: Particularity in computer searches depends on how SW was executed

Particularity in a computer search has to be flexible and reasonable because of the vast amount of information that is of necessity swept up. “Instead of applying rigid rules requiring particularity when seeking a warrant, the focus should be on the reasonableness of how the search is carried out by law enforcement officials.” This affidavit is not facially invalid. United States v. Palms, 2019 U.S. Dist. LEXIS 193500 (N.D. Okla. Nov. 7, 2019):

Courts have recognized that computer searches are “especially vulnerable to a worrisome exploratory rummaging by the government,” and the Tenth Circuit has drawn a “‘recognizable line’ in considering how much particularity is required for computer searches.” United States v. Russian, 848 F.3d 1239, 1245 (10th Cir. 2017). A search warrant for information on a computer must have some limiting principle, and a warrant seeking “‘any and all’ information, data, devices, programs and other materials” does not satisfy the particularity requirement. Id. However, a warrant may meet the particularity test if it limits the scope of the search to “evidence of specific federal crimes” or “specific types of materials.” Id. The Tenth Circuit has also recognized that it is not reasonable to require law enforcement officials to know where to search for potential evidence of a crime on a computer, and suspects may attempt to disguise or hide incriminating in innocuously named computer files to avoid detection during a search of the computer. United States v. Christie, 717 F.3d 1156 (10th Cir. 2013).

In a recent decision, the Tenth Circuit confronted the apparent dilemma between the particularity requirement of the Fourth Amendment and the difficulty with searching computers for relevant evidence. In United States v. Loera, 923 F.3d 907, 916 (10th Cir. 2019), the court acknowledged that limitations on the place to be searched work well in searches for physical objects, but computers store a vast amount of information and the information can be found almost anywhere on the computer. Id. at 916. Law enforcement agencies could reasonably seek a warrant to search the complete contents of a computer or electronic device, and traditional rules concerning the particularity requirement were not helpful in limiting the scope of searches of computers. Id. at 917. Instead of applying rigid rules requiring particularity when seeking a warrant, the focus should be on the reasonableness of how the search is carried out by law enforcement officials. Id. An officer reviewing the contents of a computer may discover evidence of unrelated criminal conduct that is not within the scope of the warrant, but this does not require a court to find that evidence was illegally seized or that a warrant is invalid. Instead, a court should focus on whether law enforcement officials reasonably directed their search toward evidence specified in the warrant and did not become involved in a lengthy investigation that is not authorized by the warrant. Id. at 920. Police may be able to limit the scope of their search by starting a search in areas of a computer most likely to hold relevant evidence, and progressively expanding the scope of the search based on what they find in their initial search. Id. at 920.