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 […]