Defendant was convicted in the Edgewater mass murder case where the defendant came to his work and shot co-workers. In the investigation, police entered his apartment without a warrant looking for possible other victims, did a quick walk through, and secured the apartment. A warrant was then obtained. Computers were seized during the search even though they were not named in the warrant. Commission of a crime does not translate into an automatic right to search the defendant’s premises, but the police here showed a possible connection because his home would likely yield evidence of the crime. Also, specification in the warrant for “records” (in an effort to determine motive for the shootings) must be construed to include computers. Commonwealth v. McDermott, 448 Mass. 750, 864 N.E.2d 471 (2007):
Here, the information in the affidavit describing the shootings and the initial investigation (including the numerous firearms and large quantity of ammunition involved in the shootings), combined with the police observations of a firearms manual and ammunition during the warrantless search of the defendant’s residence, provided a clear link between the defendant and the shooting deaths of his seven coworkers and suggested that the defendant’s will, n19 and other evidence relevant to the investigation, could be found at the defendant’s residence. As noted by the judge, in light of the arsenal of firearms and ammunition recovered at Edgewater, the magistrate had a sound basis reasonably to infer that the defendant did not hastily acquire the arsenal, but more likely amassed it over time, and had brought the weapons to work from another location large enough to store them, namely, his apartment. It follows that the magistrate could also reasonably infer that documents regarding the defendant’s purchase of such firearms and ammunition, as well his legal right to carry firearms, are documents of a personal nature that would likely be kept in a secure location such as the defendant’s apartment. Contrary to the defendant’s contention, the fact that his identity, as the perpetrator, was not in question does not mean that police lacked probable cause to collect evidence confirming his identity and other relevant materials.
. . .
We reject the defendant’s argument that the seizure of the computers and disks from his apartment was unlawful on the ground that the warrant did not specifically authorize the seizure of any “computer” or “disk.” We join those courts adopting the approach that a warrant that authorizes a search for records (properly delineated in a warrant) permits the seizure of computers and disks that electronically may hide and store such records. See United States v. Musson, 650 F. Supp. 525, 531-532 (D. Colo. 1986) (warrant authorizing seizure of “any records or writings of whatsoever nature showing any business or financial transactions” permitted seizure of computer disks); People v. Gall, 30 P.3d 145, 148 n.4, 153 (Colo. 2001) (warrant authorizing seizure of “written or printed material” indicating intent to do physical harm to person or building, permitted seizure of computers because they were “reasonably likely to serve as ‘containers’ for writings”); Frasier v. State, 794 N.E.2d 449, 454, 460 (Ind. Ct. App. 2003) (warrant authorizing search of “notes and/or records” of marijuana sales allowed police to examine computer files).
. . .
We analogize the issue (as did the judge) to that of searches of containers. The authority justifying such an analogy is well established. [citations omitted]
While every court confronting the issue has not adopted this approach, [citation omitted] the approach is by far the more practical. The reasoning sensibly acknowledges that clairvoyance cannot be expected of police officers to know in what form a defendant may maintain his records; that there is no meaningful difference to a reader between records maintained electronically and those kept in hard copies; and that, in this age of modern technology, persons have increasingly become more reliant on computers not only to store information, but also to communicate with others. For these reasons, we conclude that the warrant authorized police to seize the electronic storage media (computers and disks) within which the documents listed in the warrant may have been stored.
. . .
In conducting the actual search of the computers and disks, considerable discretion must be afforded to the executing officers regarding how best to proceed with the search. See Commonwealth v. Garner, 423 Mass. 735, 740 (1996), quoting Dalia v. United States, 441 U.S. 238, 257 (1979). Advance approval for the particular methods to be used in the forensic examination of the computers and disks is not necessary. See United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999) (“The warrant process is primarily concerned with identifying what may be searched or seized — not how …” [emphasis in original]). Indeed, the judge or officer issuing the search warrant likely does not have the technical expertise to assess the propriety of a particular forensic analysis. In conducting the analysis, a cursory examination of a computer’s files is permissible. See United States v. Gray, 78 F. Supp. 2d 524, 529 (E.D. Va. 1999) (holding that federal agent was “entitled to examine all of defendant’s [computer] files to determine whether they contained items that fell within the scope of the warrant”). Cf. United States v. Giannetta, 909 F.2d 571, 577 (1st Cir. 1990) (“Courts have regularly held that in searches for papers, the police may look through notebooks, journals, briefcases, file cabinets, files and similar items and briefly peruse their contents to determine whether they are among the documentary items to be seized”). Just as “few people keep documents of their criminal transactions in a folder marked ‘[crime] records,'” United States v. Hunter, supra at 582, quoting United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990), “computer files can be misleadingly labeled, particularly if the owner of those files is trying to conceal illegal materials,” United States v. Gray, supra at 527 n.5. However, if officers, in the course of conducting a lawful search, discover evidence in plain view, such evidence may be seized under the plain view exception to the warrant requirement. n24 See id. at 528. See also Commonwealth v. Hinds, 437 Mass. 54, 61 (2002) (applying plain view doctrine to computer search).
n24 Contrary to the defendant’s contentions, the judge properly denied the suppression of the defendant’s (1) Internet query, “how to fake mental illness”; (2) Amazon.com purchase of the book, Clinical Assessment of Malingering and Deception; and (3) downloading an article entitled, “Psychometric Detection of Malingering,” because the evidence was discovered in plain view.
With these principles in mind, we add that care must be taken to minimize the intrusion of the search and the search conducted must be reasonable. Here, these safeguards were more than satisfied. A forensic duplicate was made of the defendant’s computers’ hard drives and storage media to preserve all original data. Further, the keyword search method resulted in a cursory inspection of only approximately 750 files out of the 100,000 files contained in the defendant’s computer media, which amounted to less than one per cent of the defendant’s files. We thus reject the defendant’s assertion that the computer search was performed in an unreasonable manner.
Officers conducted a knock-and-talk on defendant’s premises. The trial court found that the “No Trespassing” sign in photographs admitted into evidence by the defense were not taken until much later because of foliation of the trees and were not present at the time of the knock-and-talk. State v. Henry, 2007 Tenn. Crim. App. LEXIS 302 (April 11, 2007). (Comment: The moral here is that the defense needs to investigate the circumstances of the search as soon as possible after getting involved in the case. If “No Trespassing” signs are there, they should be photographed immediately just so the prosecution cannot argue that they were planted later. In digital photographs, the date follows the .jpg image and helps prove when the picture was taken.)
Plaintiff claimed he was arrested on a VA parking lot by a VA police officer, held in a jail cell for two hours without explanation, then given a citation and released. He filed an FTCA case against the government, and its motion for summary judgment was denied. Viera-Carrasquillo v. United States, 482 F. Supp. 2d 182 (D. P.R. 2006).*
