I have just posted a new draft article, Ex Ante Regulation of Computer Search and Seizure, forthcoming in the Virginia Law Review.
The article is a response to dynamics that have been evolving over the last decade in the lower courts that were turned up to eleven by the Ninth Circuit’s en banc decision in United States v. Comprehensive Drug Testing. The article therefore has a lot on Comprehensive Drug Testing, although it covers much more broadly than that one case.
Here’s the abstract:
In the last decade, magistrate judges around the United States have introduced a new practice of regulating the search and seizure of computers by imposing restrictions on computer warrants. These ex ante restrictions are imposed as conditions of obtaining a warrant: Magistrate judges refuse to sign warrant applications unless the government agrees to the magistrate’s limitation on how the warrant will be executed. These limitations vary from magistrate to magistrate, but they generally target four different stages of how computer warrants are executed: the on-site seizure of computers, the timing of the subsequent off-site search, the method of the off-site search, and the return of the seized computers when searches are complete.This Article contends that ex ante restrictions on the execution of computer warrants are constitutionally unauthorized and unwise. The Fourth Amendment does not permit judges to impose limits on the execution of warrants in the name of reasonableness. When such limits are imposed, they have no legal effect. The imposition of ex ante limits on computer warrants is also harmful: Ex ante assessments of reasonableness in ex parte proceedings are highly error-prone, and they end up prohibiting reasonable practices when paired with ex post review. Although ex ante restrictions may seem necessary in light of the present uncertainty of computer search and seizure law, such restrictions end up having the opposite effect. By transforming litigation of the lawfulness of a warrant’s execution into litigation focusing on compliance with restrictions rather than reasonableness, ex ante restrictions prevent the development of reasonableness standards to be imposed ex post that are needed to regulate the new computer search process. Magistrate judges should refuse to impose such restrictions and should let the law develop via judicial review ex post.
Comments welcome, as always.
Arthur Kirkland says:
Professor Kerr:
It is proper or common for a judge (or other judicial officer) to impose other limits on a warrant? For example: “Must knock and announce before entry” or “Warrant must be served between 8 a.m. and 8 p.m.” or “Must not disturb files unrelated to [subject]” or “May only search files related to [subject]?”
March 16, 2010, 9:15 pmOrin Kerr says:
Arthur,
Good question. Under Richards v. Wisconsin, those limitations, where imposed, do not have any Fourth Amendment significance. There may be statutory rules that allow these limitations, as well, but the remedies are statutory, not constitutional.
March 16, 2010, 10:14 pmArthur Kirkland says:
(1) Is Richards v. Wisconsin an unqualified rejection of limitations, or instead a rule permitting police officers to depart from “knock and announce” with adequate reason? In other words, if the issuing judicial officer specifies “knock and accounce,” and an officer testifies that this limitation was intentionally ignored for no reason, would the result differ?
(2) What, if anything, distinguishes “constitutionally unauthorized” from “unconstitutional?”
(3) If the other restrictions have no Fourth Amendment significance (your proper use of a form of significant is relatively rare, and therefore welcome), are they unconstitutional? Why?
(4) If the other restrictions are not unconstitutional, why would computer-related restrictions differ (and be unconstitutional)?
(5) Are you familiar with cases authorizing penalties (imposed by the court or by superior officers) for a police officer’s violation of a warrant limitation imposed by the issuing judicial officer?
Thank you.
March 17, 2010, 12:00 amOrin Kerr says:
(1) In Richards, the court said that the the magistrate’s limitation on the warrant was irrelevant.
March 17, 2010, 12:11 am(2) It depends on your usage, I suppose. I used “constitutionally unauthorized” because the Fourth Amendment does not authorize it. I did not use “unconstitutional” because it’s not clear if the Fourth Amendment formally forbids it. I think the restrictions have no legal effect, but I don’t know if as a metaphysical matter the restrictions formally violate the Fourth Amendment.
(3) See (2).
(4) See (1) & (2).
(5) I’m familiar with courts imposing the penalty of suppression or the return of evidence for violating the restrictions: See Brunette and CGDT. But I think these decisions are wrong, as I ague in the paper.
Robert says:
If people named their files “My drug prices” or “My Child Porn Pictures” that would work. Few people do that so restrictions placed on computer searches prior to the search could prevent the examiner from locating the evidence. Many times in computer searches the main evidence is in the unallocated space or file slack on the computer.
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March 17, 2010, 10:20 amBuddy Hinton says:
What would a magistrate have been empowered to write into a warrant as a binding restriction when the Fourth Amendment was ratified? Do we still have the text of warrants from that era?
My guess is that the power to issue a warrant was considered as the power to set its terms, but whichever way it was then should be the answer for today.
I think this issue is much more important outside of the computer context than within it. I think this issue is much more important when it comes to plainclothes, no-knock, dynamic entry, heavily armed raids with stun grenades and the like. For example, if I was a magistrate facing these facts ex ante:
http://newsone.com/nation/associated-press/family-of-woman-killed-by-police-while-holding-baby-gets-2-5-million/
I would h8 to think I had no power to issue restrictions to save the baby’s hand b4 the popos did the predictable thing. I think magistrates should also be able to establish ex ante that the family pets are not to be killed. I think magistrates should be allowed to decree that a dynamic entry must be video’d for the sake of efficient judicial review later.
I would hate to see the issue of ex ante restrictions get settled in any sort of suppression context anyway. I want to see it settled, instead, where violation of the restriction was asserted as a per se basis of liability in a section 1983 suit setting. I mean, who cares whether evidence gets admitted against some guilty criminal? I don’t. I care more about whether a child loses a hand, or has to watch his pet dog gunned down or some old lady gets a heart attack from the flash bang. I think magistrates should be allowed to have a pro-active role in EX ANTE PREVENTION of these tragedies. Police do not have public safety in mind ex ante, and it is only the detached and neutral perspective of the magistrate that can wisely balance poposafety and suspect safety ex ante. Oops, got emotional there! Stay calm, there, Buddy. Professor Kerr will think you have lost your mind with these nutty opinions. Calm blue ocean. Calm blue ocean. Cal . . .
March 17, 2010, 11:25 amArthur Kirkland says:
I don’t know enough about these issues to identify the correct questions, let alone to take a stab at answers, but this seems to be an important issue, made more complex in the context of search/seizure of computers.
It seems sensible to permit an issuing authority to impose restrictions on warrant execution. If the police violate the warrant’s terms, whether (a) the court or another authority should be able to impose discipline, (b) someone affected by the violation should be able to recover damages or (c) suppression should be an available remedy are questions that seem to deserve thoughtful consideration.
If reluctance to give police a blank check (through ineffectiveness of limitations imposed by the issuing authority) causes judges to become less likely to issue warrants (because they object to a searcher’s record on midnight raids, no-knock raids, overreaching seizure of computers, etc.), that could be a positive development.
March 17, 2010, 12:01 pmPintler says:
IANAL a lawyer, much less a fourth amendment specialist, but the copy of Richards I found reads:
“The Fourth Amendment does not permit a blanket exception to the knock and announce requirement for felony drug investigations. While the requirement can give way under circumstances presenting a threat of physical violence or where officers believe that evidence would be destroyed if advance notice were given, 514 U.S., at 936 , the fact that felony drug investigations may frequently present such circumstances cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case.”
They agreed that the facts in this particular case (suspect had opened after knock, seen the officer, then shut the door) justified a forcible entry, but I’m trying to see how that says the 4th is irrelevant. Wouldn’t the ‘neutral scrutiny of a reviewing court’ involve 4th amendment issues?
(I hate that feeling of knowing I’m wrong but not understanding why!)
March 17, 2010, 12:24 pmLee Benemow says:
Orin -
If, as you argue, a time-of-day restriction in a warrant has no Fourth Amendment effect, does such a restriction have any effect (statutory or otherwise)? The standard US courts search-warrant form has a check box for a time-of-day restriction:
http://www.uscourts.gov/forms/AO093.pdf
That indicates that the US courts think the restriction has an effect of some kind.
March 18, 2010, 9:40 am