Officers were investigating defendant for a failure to register as a sex offender, and they got a search warrant for his computer hard drive. The warrant violated the Fourth Amendment, first, because there was no probable cause to believe there was anything on it, and, second, because it sought “evidence of violations of ‘NYS Penal Law and or Federal Statutes.’” Remanded for a severability determination. United States v. Galpin, 720 F.3d 436 (2d Cir. 2013):
In an oft-quoted passage, the Supreme Court has held that the particularity requirement “makes general searches … impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927). To be sure, we have noted that this “no discretion” standard “has not always been applied literally,” and that courts may tolerate some ambiguity in the warrant so long as “law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant.” United States v. Young, 745 F.2d 733, 759 (2d Cir. 1984). Nonetheless, we have emphasized that “a failure to describe the items to be seized with as much particularity as the circumstances reasonably allow offends the Fourth Amendment because there is no assurance that the permitted invasion of a suspect’s privacy and property are no more than absolutely necessary.” George, 975 F.2d at 76.
Where, as here, the property to be searched is a computer hard drive, the particularity requirement assumes even greater importance. As numerous courts and commentators have observed, advances in technology and the centrality of computers in the lives of average people have rendered the computer hard drive akin to a residence in terms of the scope and quantity of private information it may contain. See United States v. Payton, 573 F.3d 859, 861-62 (9th Cir. 2009) (“There is no question that computers are capable of storing immense amounts of information and often contain a great deal of private information. Searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers.”); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009) (noting computer’s potential “to store and intermingle a huge array of one’s personal papers in a single place”); Orin Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 569 (2005) (Computers “are postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more.”). The potential for privacy violations occasioned by an unbridled, exploratory search of a hard drive is enormous. This threat is compounded by the nature of digital storage. Where a warrant authorizes the search of a residence, the physical dimensions of the evidence sought will naturally impose limitations on where an officer may pry: an officer could not properly look for a stolen flat-screen television by rummaging through the suspect’s medicine cabinet, nor search for false tax documents by viewing the suspect’s home video collection. Such limitations are largely absent in the digital realm, where the size or other outwardly visible characteristics of a file may disclose nothing about its content.
As the Ninth Circuit has explained, because there is currently no way to ascertain the content of a file without opening it and because files containing evidence of a crime may be intermingled with millions of innocuous files, “[b]y necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there.” United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en banc) (per curiam). Once the government has obtained authorization to search the hard drive, the government may claim that the contents of every file it chose to open were in plain view and, therefore, admissible even if they implicate the defendant in a crime not contemplated by the warrant. There is, thus, “a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.” Id. This threat demands a heightened sensitivity to the particularity requirement in the context of digital searches.
II.
The district court determined, and the government does not dispute, that insofar as the warrant generally authorized officers to search Galpin’s physical property and electronic equipment for evidence of violations of “NYS Penal Law and or Federal Statutes,” the warrant violated the Fourth Amendment’s particularity requirement. …
The only crime that is specified in the warrant at issue here is the registration offense. The district court found (and the government concedes) that there was no probable cause to believe that Galpin possessed or produced child pornography — crimes that were mentioned neither in the warrant application nor in the warrant itself, which nonetheless authorized a search for images depicting child sexual activity. While the district court found that the warrant application provided probable cause to believe that Galpin was communicating with and luring young males to his residence, the government does not contend that the warrant authorized officers to search for evidence of luring. Nor could it, given the fact that the warrant neither mentions the luring offense nor incorporated the warrant application. See Groh v. Ramirez, 540 U.S. 551, 557 (2004) (“The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.” (emphasis in original)).
While we agree that the warrant was facially overbroad and thus violated the Fourth Amendment, this conclusion does not end the inquiry. As the district court recognized, the proper next steps are, first, to determine whether the warrant is severable — i.e., whether it is possible to carve out the portions of the warrant authorizing a search for evidence of a registration offense from the constitutionally infirm remainder — and, if so, whether the challenged evidence was in plain view when it was seized. Because we find the district court’s analysis and the factual record deficient as to both issues, we will vacate the judgment and remand for further proceedings consistent with the discussion that follows.
