I was reading a child porn computer search case today, posted elsewhere, that again made me think about how easy it is for police to put in a search warrant application that they want to search for a computer. So, let me go on a little about the need for computer searches just because there is a computer in the placed to be searched: <\/p>\n
What is the “nexus” of the computer to the evidence to be sought, practically, realistically, and actually? Is it hypothetical or real? Even if it is hypothetical, is that enough to get over the good faith exception? The case law is not all that helpful. Basic search principles lead to one result, but computer searches almost seem to be in the process of subconsciously trying to divide off into their own little world so they become subject to different rules. If it happens, it is result oriented jurisprudence that fails to adhere to basic Fourth Amendment principles. If Kyllo<\/em>\u2019s<\/a> thermal imaging is governed by basic Fourth Amendment rules applied to new technology, then why are not computer searches governed the same way? There is no way that they should not be. (The DOJ computer search manual<\/a> is listed on the right margin.)<\/p>\n As I have stated here before, I am seeing computer searches added virtually all the time into drug search warrant applications by state officers (not so much by federal), and this has been going on here for about three years. Apparently some police training “CLE” got them on to this, so they uniformly allege that \u201cin affiant\u2019s experience, drug dealers keep records on computers,\u201d as if the run of the mill street dealer uses Quicken or Excel to keep a profit-loss statement. Even the Secret Service touts it on its computer search page<\/a>: “For example, is a drug dealer maintaining his trafficking records in his computer?”<\/p>\n This I find extremely hard to believe, and ipso facto a virtual Franks<\/em><\/a> false statement that needs to be cross-examined (subpoena records and training materials). My experience as a litigator tells me this is just plain false. In drug cases, once they have the computer local police seldom submit it to a search because the average narc or drug task force either got what they want or they don\u2019t have the time to do a real forensic search of a computer. Besides, a forensic search is not cheap. So, what is the real need for it in any case? I have not had a drug case where drug transaction records were found on the computer. That does not mean it is not true, but, if it uniformly makes it into search warrant applications, why aren\u2019t they actually looking? But, if they don\u2019t look, what is the prejudice of seizing the computer because there was no search? If you ask for it back after the search, however, then<\/em> they will search it. In their mind, you wouldn\u2019t want it back if it wasn\u2019t incriminating, ignoring the fact that it is worth $2,000 or that the client has plenty of personal or work files on the computer that the client needs.<\/p>\n The case I read today for some reason triggered a thought in my defense lawyer\u2019s cynical mind: In an incidental computer search case (i.e.,<\/em> searches where the computer is only incidental to some other search, like a drug case), a police officer or prosecutor could attempt to make a plausible argument that some information on a computer likely is still kept or is still there because computer information does not easily disappear. The key to child porn cases is the child porn itself, not the computer, because the computer is merely a repository or the mechanism to acquire the child porn in the first place. That<\/em> makes it likely to be kept. Indeed, in my experience from child porn cases, the material sometimes was quite old. The computer was merely a means to acquire it, but it usually is a repository as well. <\/p>\n We have all seen staleness arguments filtering through computer search cases that talk about the computer as the repository because child porn is kept for a reason. Occasionally it will surface in a non-child porn case, such as a business records case. Again, the business records exist in their own right, and the computer is merely a repository or a device for manipulating or managing data and making the business more efficient. <\/p>\n But, some computer search cases target the suspect\u2019s computer because of its expected or potential use, seeking something that was supposed to be ephemeral and not kept. But, we know now that deleted documents and images can stay on computers for years, as long as the computer hasn\u2019t overwritten the place where that deleted document still sits. Purely random chance determines whether a deleted document is gone. In a new computer or a computer with a new large hard drive that the user is not filling up, however, deleted documents can literally stay for the life of the computer. And don’t think that law enforcement officers don’t know that.<\/p>\n In homicide cases, for example, computers are often seized merely for the internet search history, sometimes striking pay dirt. (In the treatise, the first reported computer search case was over twenty years ago, and it was pre-Internet and acquired a ransom note.) As stated before, I have been seeing computers listed in search warrant affidavits for drug searches because the police are looking for information on buyers and sellers and quantities and money. None of those have produced anything in my cases. But, there will be a case someday where the seizing of the computer in a drug case was really an ulterior motive of the police in the search because the computer is what they really wanted. The drug allegations were just the easy way into the premises, and the computer is the real target of the search.<\/p>\n Those drafting search warrants should never assume that the mere presence of a computer gives license to seize and search it. Because of the ubiquity of computers, something more has to be articulated to justify seizing the computer other than its mere possible presence at a house where other evidence might be found. The odds of finding a computer in a house are great, but that tells us nothing. What are the odds of finding evidence of the crime under investigation on the computer? Can it realistically be articulated for the issuing magistrate? Is it just a hunch? Most of the time it will be merely a hunch that the computer will have evidence of a crime. If so, isn\u2019t seizure of the computer without probable cause? But, there is also the “soft standard” of probable cause from Gates<\/em><\/a> and the admonition from Ventresca<\/em><\/a> that courts will strive harder to support a seizure based on a warrant than one without. With that, the government is more than half way to application of the good faith exception, notwithstanding the speculation in the warrant application. So, the attack must be that that part of the warrant application is totally lacking in probable cause under Leon<\/em><\/a>.<\/p>\n As for the defense, do not assume that a court will sustain a search of a computer. Officers draft search warrants, not the issuing magistrate, so assume that they want to take as much as possible, whether there is a valid justification or not. Always probe at the suppression hearing what information there was to believe that, first, a computer would be found in the home, and, second, that it would be used in a crime or to hold evidence of a crime. Moreover, a computer can be completely benign in appearance, yet we all know that a computer and internet search history are windows into the mind of the owner, and that fact is what scares me about computer searches. I have seen both in the reported cases for this website a month ago<\/a> and a year ago<\/a> and some of my own that send chills up my spine as to what was found. <\/p>\n Take the most notorious example: The search of Scott Peterson’s computer<\/a> that helped lead to his indictment and conviction for double murder because he searched for tide data<\/a> where his wife\u2019s body was found. A Google search will reveal other cases<\/a> that haven’t even appeared in the reported cases.<\/p>\n My realistic fear is that, now computers and the Internet have come of age, the ability of law enforcement officers to search for and then seize and search computers will become far easier because courts do not always apply the same principled analysis for \u201cnexus\u201d to a crime to a computer search that they do to other things, as Kyllo<\/em> teaches. This problem likely is also result driven: What was found was so significant (as in the case of Peterson\u2019s computer), that it is consciously or unconsciously hard for a suppression judge to ignore. It is like a relevancy or 404(b) objection\u2014part of the analysis is whether the prosecution needs the evidence to help it prove its case. And this begs a question: Why should it be admissible if the case is slim? If it is admitted, it is more likely to prejudice the accused and bring about a conviction. That should counsel against admission. But, that is not how trials work.<\/p>\n Incidental computer searches are just another example of Anthony Amsterdam\u2019s famous admonition that \u201ca sliding scale approach could only produce more slide than scale.\u201d Anthony G. Amsterdam, Perspectives on the Fourth Amendment,<\/em> 58 Minn. L. Rev. 349, 393-94 (1974).<\/p>\n So, what is the purported \u201cnexus\u201d to the \u201cthings to be seized\u201d under the Fourth Amendment? It has to be realistic and justifiable, or computer searches will simply devolve into 21st Century general warrants, something I have warned about before. <\/p>\n","protected":false},"excerpt":{"rendered":" b2evALnk.b2WPAutP Continue reading