CA2: 13 month delay in getting SW for computer in CP case was not unreasonable here

An Officer looking at defendant’s laptop saw a thumbnail image that was child pornography, and that was probable cause for a seizure of the computer. The 13 month delay in getting a search warrant for the computer was not unreasonable under the circumstances here because defendant’s own liberty was not restrained. The delay was based on an error, not lack of diligence. United States v. Howe, 545 Fed. Appx. 64 (2d Cir. 2013):

Second, although the government’s delay in seeking the federal warrant to search the laptop was quite lengthy, it was not constitutionally unreasonable based on the particular facts in this case. In determining the reasonableness of the government’s delay in seeking a search warrant after a valid seizure, a court looks to various factors, including the length of time for which the individual was deprived of her or his property, any diminished interest in the property that the individual may have had, and whether the seizure affected the individual’s liberty interests, for example, where an officer seizes a traveler’s luggage and thereby disrupts that individual’s travel plans. See United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998). The court also analyzes the government’s interests in seizing the property, and balances the competing interests. See id.; see also Illinois v. McArthur, 531 U.S. 326, 331 (2001) (“we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable”).

In this case, Howe was deprived of his laptop for a long period of time, approximately thirteen months. During that time, Howe’s possessory interest in the laptop was diminished by the fact that Weegar had viewed a folder on that computer containing the lascivious thumbnail image described earlier. That image provided the government with a strong interest in retaining the laptop and not returning it to Howe. In addition, the seizure of the laptop did not restrain Howe’s liberty interests. Importantly, the magistrate judge found that the government’s delay in seeking the federal warrant was due to error, rather than a lack of diligence in pursuing a search warrant. Thus, this is not a case in which the government provided no explanation for its delay and did not show any sense of urgency in obtaining a search warrant. Rather, the government’s diligence in this case was exhibited by Weegar, who swore out an application for a state warrant to search Howe’s residence and the laptop the day after the computer was seized. The delay in seeking the federal search warrant was based, at least in part, on Weegar’s belief, albeit erroneous, that he had obtained a state warrant to search the laptop. While the thirteen-month delay in seeking the federal warrant was lengthy, it was not constitutionally infirm on the facts of this case.