United States v. Cote and the Trouble With Ex Ante Search Restrictions on Computer Warrants

As regular readers know, I have written at length about ex ante search restrictions on computer warrants. As I explained in a 2010 article in the Virginia Law Review, these restrictions are conditions of how a warrant is executed that some magistrate judges have begun to impose in cases involving searches of a computer. I have argued that such conditions are not only ultra vires but actually harmful because they impede the development of the law. Specifically, post-search litigation over the execution of the warrant turns into litigation over compliance with the ex ante search restrictions instead of compliance with the reasonableness requirement of the Fourth Amendment. As a result, courts do not have the opportunity to develop the Fourth Amendment law that applies to searching computers with a warrant. The result is an ironic cycle. The absence of Fourth Amendment precedents leads some magistrates to impose their own individual ideas to limit computer searches using ex ante restrictions, and the ex ante restrictions then impede the development of Fourth Amendment precedents.

A recent decision from the United States Court of Appeals for the Armed Forces, United States v. Cote (C.A.A.F. March 8, 2013), provides an interesting case study. In Cote, the government applied for a search warrant to search for and seize computers suspected of containing child pornography. The magistrate judge hand-wrote in the following restriction:

The search of any Electronic Device or Storage Media authorized by this warrant shall be completed within 90 days from the date of the warrant unless, for good cause demonstrated, such date is extended by an order of the Court.

Just by way of background, Federal Rule of Criminal Procedure 41 does impose a 14-day limit on when warrants must be executed. However, the rule is clear that this limit only applies to the initial search for the computer, not the later forensic analysis of it. See Rule 41(e)(2)(B) (“The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or onsite copying of the media or information, and not to any later off-site copying or review.”). In other words, the magistrate judge’s condition was not based on the Rule but rather the judge’s own view that the government ordinarily should search seized computers within 90 days.

Here’s where things get tricky. Unbeknownst to the magistrate judge, the computer hard drive that was seized turned out to be damaged and inoperable. The state forensic analyst tried to search it within the 90 day period but couldn’t get it to work. So he sent it to federal investigators, where it sat around for a long time. Thirteen months elapsed before federal forensic analysts repaired the hard drive and searched it — far outside the 90 day period.

When child pornography images were found and the government wanted to use them agains the defendant, the reviewing court then faced the critical question: On a motion to suppress the evidence, what is the relevant standard? Is the standard the reasonableness of the search under the Fourth Amendment based on the amount of delay and the justifications for the delay? Or is the standard compliance with the terms of the warrant? The government argued that the relevant standard was the Fourth Amendment and its reasonableness requirement, based on the sparse caselaw on how long a delay to search a seized computer is constitutionally reasonable. Under that caselaw, it it argued, the delay was a reasonable one under the circumstances because the computer had been damaged. In contrast, the defendant argued that the evidence should be suppressed because the terms of the warrant were violated. Because the computer had been searched after 90 days had elapsed, and no extension had been obtained, the evidence was inadmissible.

In a majority opinion by Judge Erdmann, the court concluded that the evidence had to be suppressed because the terms of the warrant were violated. According to the majority, the government presumptively had to follow any ex ante search restrictions handwritten into the warrant:

We believe that the limitation reflects a judicial determination that under the circumstances of this case, ninety days was a reasonable period of time in which to conduct the off-site search. This is particularly true since the term of “90” days was handwritten into the warrant, indicating that the duration of the limitation was tailored to the facts of this case, rather than simply being boilerplate language of the warrant. In addition, the judge established a procedure to extend the off site search period if the Government found they were unable to meet the ninety-day limitation.

While we do not believe that a violation of the ninety-day period mandates per se exclusion of the evidence, we do believe that the violation imposes an additional burden on the Government to show that the violation was either de minimis or otherwise reasonable under the circumstances.

At trial, the Government did not show any fact which would support the argument that its violation of the warrant’s terms was reasonable under the circumstances. Further, performing a search over a year after the expiration of the search period, without following already established procedures for requesting a new warrant or an extension of the existing warrant, is not a de minimis violation. As a result, we cannot conclude that the Government has met its burden at trial to show that the search comported with constitutional requirements.

Further, the good faith exception to the warrant requirement did not apply because the officers engaged in “deliberate or reckless” conduct by not complying with the magistrate’s hand-written restriction.

Judge Ryan dissented on the ground that the Court had failed to apply the Fourth Amendment: It had simply suppressed the evidence for failure to comply with the added restriction and had not bothered to engage in the reasonableness analysis that the Fourth Amendment requires. That reasonableness standard required the government to balance the delay in searching the computer against the government’s reason why it hadn’t done so in light of the government’s level of cause and the degree of certainty that the warrant contained child pornography. Accoridng to Judge Ryan, the majority had erred by using the 90-day limit as the guide instead of reasonableness-balancing required by Fourth Amendment precedents.

I think the majority was wrong and Judge Ryan was right. First, Judge Ryan is right that the court was not applying the Fourth Amendment, at least in any form I recognize. The relevant Supreme Court precedent is Richard v. Wisconsin, 520 U.S. 385 (1997), in which the magistrate crossed out by hand the part of the warrant application that had allowed the government to execute a warrant at a hotel room without first knocking and announcing their presence. When the police went to execute the warrant, they searched without first knocking and announcing. On review, the United Staes Supreme Court concluded that the magistrate’s ‘decision’ that the officers had to knock and announce was completely irrelevant under the Fourth Amendment. The relevant question was the reasonableness of not knocking and announcing, which was not a question that the magistrate had authority to answer:

In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the magistrate who signed the search warrant for his hotel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the hotel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the magistrate, to justify a no knock warrant. Of course, the magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards’ hotel room. [n.7] These actual circumstances–petitioner’s apparent recognition of the officers combined with the easily disposable nature of the drugs–justified the officers’ ultimate decision to enter without first announcing their presence and authority.

I see the magistrate’s hand-written 90-day limitation in Cote as analogous to the hand-crossed-out knock-and-announce limitation in Richards. In both cases, the magistrate cannot make a “ruling” about what Fourth Amendment reasonableness is going to require in some future that the magistrate does not know. Reasonableness must be judge ex post, at the time the events occurred, not ex ante, at the time the warrant is signed. As a result, the magistrate’s ex ante limitation is irrelevant to the reasonableness of the resulting search under Richards.

More broadly, the majority’s emphasis on compliance with the 90-day limitation meant that the Court did not rule on the underlying Fourth Amendment question of how to determine the reasonableness of the timing of an electronic search with a warrant when the computer to be searched is broken. That’s an important and interesting question, but the Court never addresses it. By substituting compliance with one ex ante restriction found in one particular warrant for compliance with the balancing test of Fourth Amendment reasonableness, the court ensured that it did not hand down a decision on reasonableness that would then be automatically incorporated into all future warrants as an appellate precedent.

Anyway, I realize that some readers will have an instinctive reaction that the government should do what judges say they should do and should be punished if they don’t do it — even if Supreme Court precedent indicates to the contrary. Further, I realize that the VC readers who tend to comment on these issues will celebrate the ruling because the government lost. But I think Cote is a good example of the kinds of harms to the development of the law that ex ante restrictions can cause.