{"id":6261,"date":"2012-08-25T12:53:25","date_gmt":"2011-11-11T12:22:14","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-11-11T12:22:14","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=6261","title":{"rendered":"W.D.Wash.: SW based on German report from activity 20 months earlier was a general warrant"},"content":{"rendered":"

A search warrant of defendant\u2019s computer 20 months after a single instance of alleged downloading of child pornography based on a report from German authorities resulted in a general search in violation of the Fourth Amendment. ICE elected to use a state search warrant here to avoid Comprehensive Drug Testing<\/a>. United States v. Schesso, 842 F. Supp. 2d 1292 (W.D. Wash. 2011):<\/p>\n

Review of this search warrant is further guided by United States v. Tamura<\/a>, 694 F.2d 591 (9th Cir. 1982) and U.S. v. Comprehensive Drug Testing, Inc.<\/a>, 621 F.3d 1162 (9th 2010)(CDT III). In CDT III the Court stated that \u201c[t]he point of the Tamura procedures is to maintain the privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search of office file systems and computer databases. If the government can\u2019t be sure whether data may be concealed, compressed, erased or booby-trapped without carefully examining the contents of every file\u2014and we have no cavil with this general proposition\u2014then everything the government chooses to seize will, under this theory, automatically come into plain view.\u201d CDT III, at 1170-71. \u201cThis would make a mockery of Tamura and render the carefully crafted safeguards in the Central District warrant a nullity.\u201dId., at 1171. In concluding remarks the Court in CDT III stated: …<\/p>\n

With these principles in mind, a review of the application for the search warrant demonstrates that it did not support probable cause for the issuance of a general warrant for the search and seizure of any electronic storage devices for evidence of child pornography crimes. The generalized statements regarding cybercrime and pornography collector profiles do not demonstrate that Schesso had some proclivity or likelihood of committing crimes other than the particular crime(s) described in the single incident of file sharing that occurred on October 20, 2008, particularly when the warrant was not sought for some 20 months after the date of the alleged crimes. The application for the search warrant does not support a warrant for the search and seizure of any and all electronic storage devices found at Schesso\u2019s residence in order to comb through these devices to determine what other crimes may have been committed. The application did not justify a generalized search in this case. The affidavit simply does not support the warrant. The warrant is facially deficient. To rule to the contrary would be to say that if any person ever had a child pornography file or made such a file available to download on a peer-to-peer network, that person is subject to a general search of all of that person\u2019s computer-related equipment without reference to the particular crime or crimes that are known to law enforcement. That is not a reasonable search under the Fourth Amendment, as that amendment has been interpreted and applied by the courts, and in particular interpreted and applied most recently by the Ninth Circuit in CDT III. See also Dkt. 88 pp. 54-59.<\/p>\n

The constitution forecloses unlimited computer searches based on this type of seize-it-all-and-sort-it-out-later warrant that was obtained in this case. This was a general warrant, not justified or supported by the affidavit, and was facially deficient.<\/p><\/blockquote>\n

The good faith exception did not apply:<\/p>\n

The good faith exception is inapplicable in the context of this action where the overbroad warrant is so facially deficient that reliance on it is not reasonable. See United States v. Kow, 58 F.3d 423, 428-29 (9th Cir. 1995); U.S. v. Spilotro, 800 F.2d 959, 968 (9th Cir. 1986); United States v. Washington, 782 F.2d 807, 819 (9th Cir. 1986); U.S. v. Crozier, 777 F.2d 1376, 1381-82 (9th Cir. 1985). This is particularly true where the agents knowingly opted to seek a forum that might accept a less particular and specific warrant than a federal magistrate would require (see Dkt. 74 at 5).<\/p>\n

The warrant in this case is so broad and deviates so far from well-established Fourth Amendment standards that the searches based on that warrant cannot be defended on the basis of good faith. Exclusion of the evidence is appropriate.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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