Posted by Orin Kerr:
The Ninth Circuit's Erroneous Analysis of Computer Searches in *United States
v. Payton*:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1249913851
The Ninth Circuit recently issued a remarkable decision on the search
and seizure of computers in [1]United States v. Payton. I suspect this
case may go en banc, as the issue is pretty important, so it may not
be the last we've heard about it. Still, I wanted to flag the many
errors in this opinion for readers in case the case stays on the
books. You can read the appellant's opening brief [2]here, the
government's brief [3]here, and the reply brief [4]here; you can
listen to the oral argument [5]here. (I would have blogged about it
earlier, but I was on my blogging hiatus when it came down on July
21.)
The facts of the case are simple. The police had reason to believe
that Payton was selling drugs from his home, and they obtained a
warrant to search his home for drugs, sales ledgers relating to drugs,
and financial records for the person who lived in the home. The
affidavit of probable cause specifically requested permission to
search any computer located in the house. The affidavit explained that
based on the officer's experience, financial records were likely to be
found on a computer, and so it requested permission to search any
computers on site and seize any machines if evidence was found on
them.
During the search, an officer saw a computer in the bedroom that was
"on" but had its screensaver up. The officer moved the mouse, which
removed the screen saver. He then clicked open a file, and saw that it
contained child pornography. Further investigation confirmed that
Payton had other images of child pornography on his computer, leading
to child pornography charges. No drugs or records about drugs were
discovered.
In a decision by Judge Canby, joined by Judge Wardlaw and District
Judge Mills, the Ninth Circuit suppressed the child pornography
discovered in the computer. According to Judge Canby, the high storage
capacity of computers made it constitutionally unreasonable to search
a computer in those circumstances. Although the affidavit requested
permission to search computers discovered when the warrant was
executed, the affidavit was not incorporated: The warrant itself did
not explicitly authorize the search of computers.
Further, there was no specific evidence found in the home near the
computers that suggested that the evidence such as financial records
were stored in the computer. The officers did not find any other
evidence within the scope of the warrant elsewhere in the home, and
that made it unlikely that there would be evidence described in the
warrant inside the computer. The court concluded: "In the absence of
any circumstances supporting a reasonable belief that items specified
in the warrant would be found on the computer, the search did not meet
the Fourth Amendment standard of reasonableness."
Judge Canby also commented on the policy consequences of a contrary
rule:
Our confidence in our conclusion is buttressed by contemplating the
effect of a contrary decision. In order to uphold the search in
this case, we would have to rule that, whenever a computer is found
in a search for other items, if any of those items were capable of
being stored in a computer, a search of the computer would be
permissible. Such a ruling would eliminate any incentive for
officers to seek explicit judicial authorization for searches of
computers. But the nature of computers makes such searches so
intrusive that affidavits seeking warrants for the search of
computers often include a limiting search protocol, and judges
issuing warrants may place conditions on the manner and extent of
such searches, to protect privacy and other important
constitutional interests. We believe that it is important to
preserve the option of imposing such conditions when they are
deemed warranted by judicial officers authorizing the search of
computers. If unwarranted searches of computers are automatically
authorized by upholding the search in Payton�s case, that option
will be lost.
It's hard to know where to begin with the number of problems with
this opinion. I think I'll start with the big-picture conceptual
issues; then turn to Supreme Court precedent; and then go to Ninth
Circuit precedent.
1) To begin with the most basic conceptual error, the Fourth
Amendment simply does not require warrants to list the items to be
searched. As the text of the Fourth Amendment makes clear, warrants
must "particularly describ[e] the place to be searched and the persons
or things to be seized" (emphasis added). The Fourth Amendment
requires a description of the things to be seized, not a description
of containers that are searched during the hunt for the things to be
seized. I don't think I have ever seen a warrant that specifically
listed the items to be searched: There isn't even a place for that on
the standard warrant form.
The text of [6]Rule 41, the rule that governs search warrants, makes
this point plain: It requires warrants to list the property that the
agents want to "search for and seize." Note search "for," not search.
(This was a state warrant, to be clear, so Rule 41 isn't directly
applicable; I point it out only to emphasize that there is no
requirement that warrants list the items to be searched.) When the
officer moved the computer mouse and saw the image, he didn't seize a
computer. He didn't even seize the image. Rather, he searched the
computer without seizing anything. It was unneceesary to get prior
authorization to seize a computer because no computers were actually
seized.
2) Now I'll move on to Supreme Court precedent. There is no specific
Supreme Court precedent on how the Fourth Amendment applies to the
search of computers. But it's worth noting that the Supreme Court has
been clear that a warrant to search a place for specific evidence
permits the search of anything in that place where the described
evidence could be located. Here's Justice Stevens making the point
pretty forcefully in [7]United States v. Ross, 456 U.S. 798 (1982):
A lawful search of fixed premises generally extends to the entire
area in which the object of the search may be found, and is not
limited by the possibility that separate acts of entry or opening
may be required to complete the search. Thus, a warrant that
authorizes an officer to search a home for illegal weapons also
provides authority to open closets, chests, drawers, and containers
in which the weapon might be found. A warrant to open a footlocker
to search for marihuana would also authorize the opening of
packages found inside. A warrant to search a vehicle would support
a search of every part of the vehicle that might contain the object
of the search. When a legitimate search is under way, and when its
purpose and its limits have been precisely defined, nice
distinctions between closets, drawers, and containers, in the case
of a home, or between glove compartments, upholstered seats,
trunks, and wrapped packages, in the case of a vehicle, must give
way to the interest in the prompt and efficient completion of the
task at hand.
It seems to me that Judge Canby's decision in Payton tries to create
just such a "nice distinction" for computers. But I think it's hard to
square with the Supreme Court's view in Ross.
[8]
To read the rest of this post, click here.
Further, in response to the policy argument the panel offers, the
Supreme Court has also indicated that warrants should not try to
regulate the way that warrants are executed. The most recent statement
of this was [9]United States v. Grubbs, 547 U.S. 90 (2006), when the
Supreme Court overturned the Ninth Circuit's attempted limits on how
agents could execute anticipatory warrants. The Court explained,
quoting past cases, that "Nothing in the language of the Constitution
or in this Court's decisions interpreting that language suggests that,
in addition to the requirements set forth in the text, search warrants
also must include a specification of the precise manner in which they
are to be executed." This is a general principle, not a specific rule,
but it significantly cuts against the permissibility of the kind of
limitation that the Payton panel wants to permit.
3) Finally, the Payton opinion purports to root its approach in a
recent Ninth Circuit decision, [10]United States v. Giberson, 527 F.3d
882 (9th Cir. 2008). This doesn't work, however, because the legal
Giberson was very different. The question in Giberson was whether the
police could seize computers onsite and take them away for later
search pursuant to a second warrant when the initial warrant was for
physical documents. The warrant didn't ask for permission to seize
computers, but the agents did seize them, figuring that the computers
might contain those documents in physical form. They then obtained a
second warrant to search the computers. Thus the question in Giberson
was whether the seizure was permissible when the first warrant did not
explicitly authorize it: The Giberson court concluded that, in the
context of that case, it was.
The Payton court reasons that if Giberson was fact-specific, then
there is a general reasonableness test applicable here: Accordingly,
there must be facts according to which the search and seizure of a
computer with a warrant was unreasonable. It then announces that this
is such a case. But whether the Fourth Amendment allows a seizure of
an item not named in the warrant is very different from whether the
warrant allows a search for evidence described in the warrant that
happens to be on a computer. As I explained above, the Fourth
Amendment requires a description of the items to be seized, and limits
the permitted seizure to those items, but the Fourth Amendment does
not require a description of the items to be searched. Rather, so long
as the police have a valid warrant, they can search anywhere in the
place to be searched that could store the items to be seized.
I should add that I am quite sympathetic to the concern motivating
the panel: As the oral argument makes clear, the judges were concerned
with the core problem of computer search and seizure of how to limit
computer searches. I'm concerned about that, too, and have [11]written
an article on how best to approach the problem. But the Payton court's
efforts to address the problem just doesn't work: In addition to its
many practical problems, which I'll leave out for now, it's pretty
clearly inconsistent with the text of the Fourth Amendment and Supreme
Court precedent. The panel instead should have dealt with this problem
as a plain view issue, and analyzed whether the opening of the files
was justified as within the scope of the warrant based either on the
subjective approach of [12]United States v. Carey (10th Cir. 19990,
the objective approach used outside the computer setting, or using
some other approach to plain view.
References
Visible links
1. http://www.ca9.uscourts.gov/datastore/opinions/2009/07/21/07-10567.pdf
2. file://localhost/files/Payton1.pdf
3. file://localhost/files/Payton2.pdf
4. file://localhost/files/Payton3.pdf
5. http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000002122
6. http://www.law.cornell.edu/rules/frcrmp/Rule41.htm
7. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0456_0798_ZS.html
8. file://localhost/var/www/powerblogs/volokh/posts/1249913851.html
9.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=04-1414
10. http://www.ca9.uscourts.gov/datastore/opinions/2008/05/29/0710100.pdf
11. http://www.harvardlawreview.org/issues/119/Dec05/Kerr.pdf
12. http://ca10.washburnlaw.edu/cases/1999/04/98-3077.htm
Hidden links:
13. file://localhost/var/www/powerblogs/volokh/posts/1249913851.html
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