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Very Interesting Federal Opinion: Search Warrant and Hard Drive

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by: Ryan Scott • July 28, 2017 • no comments

The opinion is here.

Key quote:

It is unlikely that the Government would argue it is constitutionally reasonable to search a home based on a warrant previously issued for a crime the homeowner had already been convicted of, and to also direct the searchers to look for evidence of offenses not named in the warrant. In this case, however, the Government asserts the right to do just that, but for a portable hard drive (thumb drive) rather than a home. We recognize the differences between a home and a thumb drive and the unique challenges in applying the Fourth Amendment in a digital context. See generally Josh Goldfoot, The Physical Computer and the Fourth Amendment, 16 Berkeley J. Crim. L. 112 (2011); Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005). But the Fourth Amendment compels us to treat them the same in this case. We hold that the military judge did not abuse his discretion in concluding that evidence of an offense not named in the warrant was outside the scope of the warrant and must be suppressed. Furthermore, based on the facts found by the military judge, we conclude, as a matter of law, that the search was not constitutionally reasonable under the particular circumstances of this case. Accordingly, we affirm the United States Army Court of Criminal Appeals (ACCA).

Another noteworthy quote:

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “That Amendment grew out of colonial opposition to the infamous general warrants known as writs of assistance, which empowered customs officers to search at will, and to break open receptacles or packages, wherever they suspected uncustomed goods to be.” Payton v. New York, 445 U.S. 573, 608 (1980) (citations omitted). At the epicenter of the panoply of rules intended to effectuate protection against “dragnet searches for evidence of any crime,” Kerr, supra p. 2, at 536, are the requirements that a search warrant must: (1) be based on probable cause; (2) be supported “by Oath or affirmation”; and (3) “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. But “[t]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Kentucky v. King, 563 U.S. 452, 459 (2011) (alteration in original) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).
“Searches conducted after obtaining a warrant or authorization based on probable cause are presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions.” Hoffmann, 75 M.J. at 123– 24 (internal quotation marks omitted) (quoting United States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014)). While a warrant makes a search presumptively reasonable, a warrant “does not guarantee the constitutionality” of a search “or relieve the Government of the burden of establishing that the warrant did not authorize an unreasonable search.” United States v. Smeal, 23 C.M.A. 347, 350, 49 C.M.R. 751, 754 (1975); see also Camara v. Municipal Court of San Francisco, 387 U.S. 523, 539 (1967) (“The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable government interest. But reasonableness is still the ultimate standard.”). To assess whether a search is reasonable, we must assess, “on the one hand, the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Riley v. California, 134 S. Ct. 2473, 2484 (2014) (internal quotation marks omitted) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).
In the absence of some exception to the warrant requirement, to allow the seizure of objects not particularly described in the warrant would violate the “familiar principle . . . that no amount of probable cause can justify a warrantless search or seizure.” Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971); see also Maryland v. Garrison, 480 U.S. 79, 84 (1987). Searches conducted pursuant to a warrant are necessarily limited in scope, thus preventing a general rummaging about. See Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (citing Stanford v. Texas, 379 U.S. 476, 485 (1965)); see also Stanford, 379 U.S. at 485–86 (“As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” (internal quotation marks omitted) (citation omitted)).