United States v. Kelley and Probable Cause for Search Warrants:
Yesterday the Ninth Circuit published a Fourth Amendment decision that included a rather strongly worded dissent by Judge Sidney Thomas. In his dissent, Judge Thomas accused the majority (Judge Rymer and Ret'd Justice O'Connor) of "eroding" the Fourth Amendment by "lowering" the probable cause standard to fight the "scourge" of child pornography:
The case is United States v. Kelley, and involves charges for knowingly receiving images of child pornography. The government obtained a search warrant for the contents of Kelley's AOL e-mail account after an investigation in Germany revealed that Kelley's account was on the recipient list of a number of e-mails containing child pornography. The question in the case was whether the affidavit in support of the warrant for Kelley's account made the case for probable cause under the Fourth Amendment.
The critical part of the case comes at the beginning of the analysis section, in the middle of page 7:
But something seems off-track here: the court is applying the wrong Fourth Amendment standard. Search warrants don't require probable cause that a particular person committed a particular offense. Rather, they require probable cause that evidence or contraband is located in the place to be searched. The key case is Zurcher v. Stanford Daily, where the Court offered the following analysis:
It seems that the government improperly failed to make this argument, so I suppose you can't fault the majority for applying the incorrect standard the government wrongly believed applied. (It's unclear whether the government also conceded Fourth Amendment protection in the e-mail in the first place, which would be front-page news if true.) At the same time, I think it does suggest that Judge Thomas's dissent is pretty far off-base. Judge Thomas decries the erosion of the Fourth Amendment under the wrong test, and under the right test his distinction between spam and invited e-mail is irrelevant.
Thanks to How Appealing for the link to the opinion.
Child pornography is a scourge on our nation. But every hour, millions of unsolicited and deceptively disguised emails are sent to innocent computer users. Lowering our standards of probable cause to permit government intrusion into private residences based solely on proof of mere transmittal of unsolicited email constitutes an unwarranted erosion of the Fourth Amendment.So you're wondering, was the Fourth Amendment really eroded by the majority's decision? The answer is "no," although for a different reason than the majority offers. The reason Judge Thomas is wrong is that everyone in the case was applying the wrong legal standard, and the standard they applied was far more pro-defendant than it should have been. Had the judges applied the correct Fourth Amendment standard the case would have been a pretty obvious win for the government.
The case is United States v. Kelley, and involves charges for knowingly receiving images of child pornography. The government obtained a search warrant for the contents of Kelley's AOL e-mail account after an investigation in Germany revealed that Kelley's account was on the recipient list of a number of e-mails containing child pornography. The question in the case was whether the affidavit in support of the warrant for Kelley's account made the case for probable cause under the Fourth Amendment.
The critical part of the case comes at the beginning of the analysis section, in the middle of page 7:
Kelley and the government agree that unwitting receipt of e-mail containing contraband will not support probable cause. See 18 U.S.C. § 2252A(a)(2) (criminalizing the knowing receipt of child pornography); United States v. Romm, 455 F.3d 990, 998 (9th Cir. 2006) (holding that a person receives child pornography if he seeks it out). The dispute centers on whether the affidavit is sufficient even though it lacks direct evidence that Kelley actually solicited the offending attachments.In other words, the parties agreed that the warrant was valid only if the affidavit showed probable cause that Kelley knowingly received the images, not just that the images were there in the account. As a result, both the majority and dissenting opinions focus on whether the affidavit offered sufficient evidence that Kelley was a knowing recipient of the images rather than someone who was being "spammed" with the e-mails without knowing about it or against his will. The majority says that there was enough evidence to conclude that Kelley had asked to be a recipient of the e-mails; Judge Thomas concludes that there was a good chance that Kelley was an unwilling recipient and therefore that the warrant was invalid.
But something seems off-track here: the court is applying the wrong Fourth Amendment standard. Search warrants don't require probable cause that a particular person committed a particular offense. Rather, they require probable cause that evidence or contraband is located in the place to be searched. The key case is Zurcher v. Stanford Daily, where the Court offered the following analysis:
The critical element in a reasonable search is not that the owner of the property is suspected of crime, but that there is reasonable cause to believe that the specific "things" to be searched for and seized are located on the property to which entry is sought. . . . Federal Rule Crim.Proc. 41, which reflects "[t]he Fourth Amendment's policy against unreasonable searches and seizures," United States v. Ventresca, 380 U.S. 102, 105 n. 1 (1965), authorizes warrants to search for contraband, fruits or instrumentalities of crime, or "any . . property that constitutes evidence of the commission of a criminal offense. . . ." Upon proper showing, the warrant is to issue "identifying the property and naming or describing the person or place to be searched." Probable cause for the warrant must be presented, but there is nothing in the Rule indicating that the officers must be entitled to arrest the owner of the "place" to be searched before a search warrant may issue and the "property" may be searched for and seized. . . .So the proper Fourth Amendment question was whether probable cause existed to believe child pornography was in the account, not whether there was probable cause that Kelley in particular was guilty of an offense.
The Court of Appeals for the Sixth Circuit expressed the correct view of Rule 41 and of the Fourth Amendment when, contrary to the decisions of the Court of Appeals and the District Court in the present litigation, it ruled that, "[o]nce it is established that probable cause exists to believe a federal crime has been committed, a warrant may issue for the search of any property which the magistrate has probable cause to believe may be the place of concealment of evidence of the crime." United States v. Manufacturers Nat. Bank of Detroit, 536 F.2d 699, 703 (1976).
Against this background, it is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of crime and is subject to arrest. And if those considered free of criminal involvement may nevertheless be searched or inspected under civil statutes, it is difficult to understand why the Fourth Amendment would prevent entry onto their property to recover evidence of a crime not committed by them, but by others. As we understand the structure and language of the Fourth Amendment and our cases expounding it, valid warrants to search property may be issued when it is satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises.
It seems that the government improperly failed to make this argument, so I suppose you can't fault the majority for applying the incorrect standard the government wrongly believed applied. (It's unclear whether the government also conceded Fourth Amendment protection in the e-mail in the first place, which would be front-page news if true.) At the same time, I think it does suggest that Judge Thomas's dissent is pretty far off-base. Judge Thomas decries the erosion of the Fourth Amendment under the wrong test, and under the right test his distinction between spam and invited e-mail is irrelevant.
Thanks to How Appealing for the link to the opinion.
(drugs that belong to A that the police become aware of are in B's house can be seized by obtaing PC that the drugs are in A's house..going there and searching the house..and not ever charging A with a crime)
However, does someone have to be charged with a crime in order to execute a warrant?
here..the images were bought from germany and if they were never sought by the defendant..then there is no crime at all.
[OK Comments: George, whoever sent the e-mails transmitted the contraband images to or within the United States in violation of 18 U.S.C. 2252(a)(1) & (a)(2). It doesn't matter if they were charged.]
ok..i don't mean that just that there was no charge at the time...
there never could have been any charge since if he know about the images..the guilty party is a german national whom its terribly unlikely could have been prosecuted for the u statute you quote...since he did it from germany (correct me if I'm wrong on that point.
the fourth amendment protects against unreasonable S&S...of course if the US has PC for some crime thats a stated constitutional exception in the text of the 4th...but what state interest is there in seizing contraband that is not part of a crime that could ever..reasonably..be prosecuted
..i get that my argument may fail on real 4th amendment tests...but is this..perhaps..why the government conceded this point?
i also get that its all academic because the court ruled that there was PC that he sought out the stuff.
thanks again
I'm not a fourth amendment expert by any stretch of the imagination, but I imagine the state interest is A) preventing the person who has the contraband from using it and B) preventing the further distribution of that contraband.
For example, say Smith gets an unasked for FedEx from Rwanda that the feds think contains marijuana. If there's PC to believe this, I think they can get a valid search warrant, even though there wouldn't be PC to prosecute Smith, and they could likely never get the Rwandan originator. For the same reason, they could do the same to Kelley.
Wow, if I was a cop trying to read all the emails in your account, by that standard I could go to a public library with a flash drive with TOR and some child porn picked up from other cases, mail it to you, then swear out a warrant.
I now own your email. And if I overreach a bit and take every computer in your home as well as everything with data on it -- dvd's, videos, printers, calculators, bicycle watches, iPods -- then I've got a damn good glimpse into your life.
Somewhere in all that mess there should be something I can make up a story about to nail you on, even dropping the child porn case.
Oh... and how did I know to get a warrant on the child porn? Even setting aside the anonymous call, all it takes is for a copy of the email to go to a Police compromised mailbox. After all, you're running the investigation into child porn, so presumably you've compromised at least one mail box somewhere. When you TOR mail your mark, just CC a copy to the compromised mailbox and now you've got reasonable cause. And since it's TOR, no one can trace it back to you.
Said differently, if a search can be allowed just to look for any email suspected in your account, then one's entire home and business is now up for grabs and the 4th Amendment means absolutely nothing. And don't tell me cops shouldn't do this. As there's no way to prove it if they do, searches such as this will happen. Therefore they should be disallowed.
I don't doubt that you are correct about the standard generally used for fourth amendment searches but this standard is only valid so long as it gives reasonable results. Ultimately the question is whether the conduct comports with a reasonable interpretation of the 4th ammendment itself.
Now the problem with the standard you articulate is that it could entirely remove any fourth ammendment protection against searches of email inboxes. I mean let's suppose that this 'scourge' of child porn spam becomes so widespread that everyone with an email address will have one or more child porn images in their spam folder. Does it thus follow that anytime the government wishes to read someone's email they need no additional probable cause but the fact that they received child porn spam?
Even if you assume that massive child porn spam would only allow the government to look in inboxes to seize or examine the spam the result is still ridiculous. In order to collect all the contraband in someone's inbox the government must (practically) examine every mail in their inbox. Even if this extra info they collect is not allowed to be used in criminal prosecutions it still clearly undermines the basic intent of the fourth ammendment. After all the fourth ammendment is not designed to protect criminals but rather resist government tyranny by stopping the government from snooping through our mail looking for treasonous thoughts.
Any test which could give the result that the government could look through anyone's email has been stretched passed it's proper domain of application.
To give an examples the framers could directly understand imagine the colonial government passed a law deeming any british made object contraband (or perhaps any foreign made object without a tax stamp). The government might then choose not to do anything about this contraband at all but surely it can't then give it the right to enter any house with british made objects. This would totally undermine the 4th amendment.
I think implicit in the idea that the government can search anytime they have reasonable suspicion of contraband is that this contraband is truly contraband, i.e., it is something the government *might* pursue on it's own in some circumstances. Since spammed child porn is something the government *never* really concerns itself with it isn't really contraband in the sense understood in the test you mention.
In other words it shouldn't be laughable that the government might execute a search warrant only on the grounds listed in the affidavit. Since the government wouldn't dream of executing a search warrant just on the grounds that some poor person received a spam this justification for the search warrant should be seen as an end run around the clear intent of 4th amendment precedent and denied, i.e., it's just another illustration of why it is judges and not computers who should rule on the law.
I agree with Justice Stevens -- the Fourth Amendment talks about reasonableness and leaves it to us to figure it out; the standard you're talking about is a tool to help sort it out, and not necessarily infallible. If the "correct" standard of interpretation leads to "any time the police can prove you got evil email, they can search and seize whatever they want," I'd argue that the problem isn't that the dissent is wrong, but that the standard of interpretation might need to be ditched in favor of one that doesn't lead to craziness. While there are all kinds of unpleasant things that come to mind, it makes me think about my Gmail spam box in particular, which I never bother to clean out since I get all my email via POP3. With its contents police could seize my computer and the judge is bound by a decision from when my parents were in middle school?
And since the standard dates back to the days before the Apollo moon landings (and was clarified before the first PCs were sold,) I don't feel like it's that big a deal to challenge it in the light of changes in how communications technology works. No gangs of thugs actually put envelopes of pot in every mail box in a neighborhood -- there are people who send millions of horrible, nasty, "wash your mind out with soap" spam emails every year.
(I also find it unbelievably creepy that there's no "yes, you have Fourth Amendment protection when it comes to your email" rule in place. My emails are on my hard drive, in my bedroom. Wasn't part of the whole premise of the Fourth Amendment that people were sick/terrified of soldiers bursting into homes without formal cause, just to enforce customs laws and terrify people? Though really that puts me in mind of the MPAA and RIAA, and not icky spam...)
In view of the context-sensitive application and pro-privacy aspirations of Fourth Amendment law, your post is thougt-provoking, but unsatisfying.
Fourth Amendment law (which I do not teach) is extraordinarily technical, yet as with any legal rule involving the word "reasonableness", its meaning can't be left to the technicians.
Here's an example I'd like to offer.
The FBI busts a porno spammer, and obtains list of addressees. The list says, "Email Addresses of People We Are Sending Unauthorized and Uninvited Child Pornograpy To".
Unquestionably, there is reason to believe a crime has been committed. I would also concede that obtaining access to the addressee computers would tend to produce more evidence of this crime.
If I understand your post, the Fourth Amendment, correctly applied under existing law, authorizes this. I am curious about your personal views here, but my real question is whether you believe such an outcome is consistent with the structure and purpose of the 4th Amendment, and whether you would predict that this outcome would command levels of public support or indifference so as to insulate it from nonjudicial interference.
If one of your many articles addresses this question, I'd welcome a cite. Thanks.
Of course no one should send child porn including the police.
My point is it's pointless to talk of what the police should or shouldn't do unless we have the technical means to identify what they are doing. We don't and never will, thank the Gods.
Given this ruling, using TOR or some other method, a rogue cop someplace sometime will plant child porn on a target in order to get a warrant and Tilt! Game Over. In a certain way, this is no different from a cop who says a driver made a lane change without a turn signal to justify a traffic stop, when the cop wants to look more closely at the driver or someone in the car. And frankly most cops wouldn't even feel guilty about doing so. This is just one more step over the line. Would most cops cross it this line? No of course not. But it only takes a couple and given the ruling there's no way to prevent a raid on your home or any home or business anytime.
Furthermore as Sarah correctly starts to point out, this ruling just slightly extended means the RIAA could get a DA to go along and suddenly instead of its current 3,000 Doe lawsuits, it's 3,000 search warrants for illegal mp3's, coming to a college campus near you, cops bursting through into your home taking your computers because an IP that was registered to you for 24 hours and then assigned to someone two miles away and may not have been your 16 year old daughter at all, downloaded Anna Nalick (Breathe (2 AM)), Liz Phair (Cinco De Mayo), and Idina Menzel (Defying Gravity).
But you can't prove anything because they just hauled away every computer, dvd, video tape, and iPod in your home. Including your family photos just in case there's something there they can make a story to nail you on. To justify their search so you won't sue. After all, they broke down ten doors today, fifty this week, and this is Team 5. 500 doors a week on the RIAA hit-squad. All because any illegal activity in your mailbox is grounds for a warrant and all it takes is a sworn statement from a cop. Or even from a stool pigeon at an ISP watching traffic flows.
This is a bad ruling inconsistent with the technical realities of the internet as it actually works crossed with the emotional realties of law enforcement trying to gather information on a target. It guts the 4th Amendment, laying every home and business in the United States wide open to anyone with a grudge and a touch of technical knowledge.
I agree but unfortunately the courts decided long ago that you have no 4th amendment interest in information held by a 3rd party (such as your ISP). This is nothing new. Your bank account records are not protected by the 4th because they are held by your bank. Here the e-mail was being held by AOL, not the eventual defendant.
The whole regulatory search exception also means that you have greatly lessened 4th amendment rights on business pemises.
Note that only libertarians have the right to be worried about this state of affairs since the whole apparatus of the high-tax high-regulation State who be impossible without the right to snoop into your business and financial affairs without probable cause. So anyone who likes taxation and regulation is logically estopped from opposing the human rights violations that make these features of modern life possible.
Interesting post on the 9th Circuit 4A case. I wonder, however, whether your reading of Zurcher is a bit too broad. Does it mean that anytime the police have probable cause to believe that there is an illegal substance or thing located in a home that the gov't can get a warrant? Or is the obtaining of a warrant tied to the reasonable belief that a crime has been committed, either by the resident or by somebody else? So when making out the warrant application for, say, drug trafficking, does the government only need to establish the existence of drugs in a person's home? Or does the government need some further evidence that the offense of drug trafficking has occurred? I believe that it is the latter.
In other words, probable cause is driven first by the existence of a crime, and only then does it extend to instrumentalities of that crime. Consider the following passage in Zurcher:
So the Kelley case must be linked to a particular crime -- either child porn charges against the German entity or against the defendant. Regarding the German offense, there would likely be no jurisdiction for this offense in the US (I doubt the government can get a warrant to help out foreign governments investigate crimes, but I don't know this for sure). As for the defendant, the government must first establish that it has probable cause to believe he committed a crime or somebody else in the United States committed a crime AND that evidence of that crime is likely to be found in the place to be searched. It's this first part of probable cause test that I think you're giving short shrift to.
I have to think that there is no probable cause to search unless we have a belief that the "evidence" is relevant to something of interest, and that the affidavit has to establish that interest. Thus, the question here is the "knowingly", though I tend to agree with the comment that you need to see the account to see if the email was opened and stored, and thus there was probable cause based on the mailing list.
This post provoked some very interesting responses, and I hope to post more on this. But two quick responses.
First, obviously nothing in my post says that I like the existing test as a matter of policy. When I write about existing law, I am writing about existing law: I do not cook up a stew that combines existing law with my personal preferences, bring it to a boil, and then serve the broth as "the law." Given that, it probably makes more sense to address your policy criticisms to the 1978 Supreme Court Zurcher case.
As for Dan Solove's comments, whoever sent the e-mail transmitted the contraband images to or within the United States in violation of 18 U.S.C. 2252(a)(1) &(a)(2). It doesn't matter if they were inside the U.S. or outside the U.S. at the time, and the FBI wouldn't know that anyway. So long as the images were relevant as evidence of someone committing an offense, that is enough, and the offense can occur even if the sender is abroad. (And yes, the U.S. government also can get warrants to help outside governments -- see letters rogratory and MLATs with Germany.)
Again, I'm not saying I like it -- I'll have more on this later, as it raises some really interesting questions about how traditional laws apply online -- but I think it accurately reflects existing Fourth Amendment law as directed by the U.S. Supreme Court.
1. I disagree that there would be no jurisdiction in the United States for the crime of sending child pornography into the United States. There may not be personal jurisdiction over the German defendant, but mailing illicit articles (even unwanted) to an address in the US is surely a crime and could be prosecuted if the gov't got custody over the person.
2. The implication of some of these arguments would appear to be that police could never get a search warrant to search a home of an unwitting third person when the defendant hid a murder weapon there. That can't be right, no?
also-i understand what prof Kerr is saying regarding that he is explaining the sate of constitutional case law...and not agreeing with it..nor explaining the benefits of it. (i like the cooking up a broth analogy)
but i have to point out at least 1 implication of such an interpretation:
by this logic...if the police know of evidence of a crime committed by someone who is deceased..a warrant could be issued to search the house of a living non-accomplice-
how about that.
They can and do sometimes unfortunately.
Mainly, the problem really exists is when law enforcement tries to engage in the type of "fishing expeditions" that are prohibited in Rule 17. That is, they suspect there's a PARTICULAR crime, but have no basis to show it, so they intentionally misuse an otherwise valid warrant to accomplish an otherwise illegal search against a very-much valid privacy interest.
Zucher, which I think was wrongly applied in several cases like this, is not the appropriate case. Zucher, as Bob Jones implies, had the officers looking for particular information. That has the benefit of a warrant which can be quite limited in its intrusion on privacy interests. Here, I think Zucher is inapplicable not only for that reason, but for another reason - without making the showing that Orin Kerr claims, it's not clear that there's any contraband in the 4th amendment sense.
OK claims that Zucher goes to "contraband" generally - it does not. It goes to evidence of a crime. If something that would otherwise be contraband is not evidence of any crime or wrongdoing, then it cannot be the basis for a warrant. The crime or wrongdoing does not have to be one of the person(s) with the privacy interest, but there has to be some probable cause for it has to exist.
Because pornagraphy is an intent crime, if they cannot show that the defendant committed a crime (within reasonable cause), they have to show that *somebody* did. Now, that someone could be the sender, sure. But they still have to make all the requisite showings as relating to the sender. This is not a high burden, but there are all sorts of reasons the burden might not have been met - the only evidence regards a sender that has alreadry been tried for his crime; the only evidence regards a sender where they already have the contraband (the sent emails); the only evidence regards a sender who sent it from a place where his actions were not criminal.
At that point, they need to show a crime has been committed. Now, perhaps there's an argument out there that for certain crimes "intent" is not neccesary to show because ownership makes intent "probable," but that's not Zurcher, and that would be a new law.
If so, then don't the police, without planting anything, have probable cause to think there is evidence of a crime on everyone's computer?
The problem is, it's up to the Supreme Court to recognize that and not Judge Thomas.
Way to go, Zurcher.
But the Ninth Circuit didn't say that. It said it was "reasonable to infer a 'fair probability' that attachments depicting child pornography were addressed to Kelley’s screen names because he wanted them to be." They based this conclusion on more than just Kelley's receipt of child pornography, but on a number of additional facts. Kelley
(1) received nine emails containing
(2) similar kinds of child pornography
(3) under two different screen names
(4) from two different known child pornographers who trafficked in that kind of child pornography; and a
(5) police investigator averred that child pornography of this sort is rarely sent in spam but rather traded secretly among collectors.
Whether you think that's enough for probable cause has a lot to do with your assumptions about how the distribution of child porn works. If you think there's a constant flow of child porn spam to everyone's email accounts (as there is with lawful porn spam), then those facts probably aren't enough. If, however, you agree with the police investigator that the unintentional, repeated receipt of a particular type of child porn is unlikely, then the majority had it right.
Personally, I'm comfortable with the majority's conclusion, and I'm very comfortable with the standard it applied.
That's a bit of a leap. It's a better argument for Congress to impose some sort of limitation on the searches, such as requiring evidence that the recipient asked to receive the emails. If not Congress, then the Justice Department (and state Attorneys General).
Consider possession of stolen things. If I steal some stuff from you and hide it at my mother's house, the police have every right to obtain a warrant to search mom's place (assuming they have probable cause to believe I put it there) even if they know for an absolute fact that mom has no idea it is there. They are looking for evidence of a crime, and the stolen goods themselves are evidence of a crime.
Those arguing against Professor Kerr's analysis would basically allow the stolen property to be safe at mom's house, because the police would never have probable cause to believe that mom had knowledge that the goods were stolen (if she even knew the goods were there).
Your take on the law seems to me pretty clearly incorrect. Given that, I would be very interested in knowing what cases you are thinking of that you believe support your view.
Search warrants are for (usually) "stuff". It's irrelevant, as stated, as to whether somebody has committed a crime. What's relevant is that the contraband or evidence is there.
It is not relevant (Alvin) and others whether somebody could be prosecuted for the crime.
If cops have probable cause that there is a meth lab, bomb making materials, marijuana grow, child porn, or automatic weapons at an abandoned warehouse with NO suspects, of course they could still get a warrant to seize it.
The issue is -- is the "stuff" either illegal in and of itself (drugs are a good example), or evidence of a crime
If, once the evidence is seized, "stuff" is found that incriminates a specific person, then that's great.
I don't think anyone's disagreeing, but you have to look at the whole circumstances of the case. If we limit the potential criminals to the recipient, as I noted above, but there's no probable cause as to a crime because of issues dealing with knowledge, there's no probable cause for a crime, which means although you have a very high likelihood of finding child porn on the computer, you do *not* have probable cause for finding evidence of a *crime* on the computer.
However, I also think that the repeated receipt on multiple e-mail accounts of child porn images gives rise to an inference that it has been sought out. It strikes me as unlikely to be an accident, given everyday experience.
While that is certainly A reason, it is hardly exhaustive.
Cops can get search warrants for evidence that they think might EXONERATE a suspect.
It is not the job of the police to get evidence to convict a person. It is the job of the police to GET evidence, whether it is incupatory or exculpatory.
They are to follow the evidence, not try to convict somebody. Only a jury does that. It is at least as important to clear a wrongly accused person(s) (see: duke lacrosse) as it is to get evidence against a properly accused person.
And often, the only way it is determined whether or not the person is justifiably accused is to search for "stuff".
That's *NOT TRUE*. It's irrelevant as to whether *a particular person* has committed a crime. But search warrants cannot demand *stuff*, even if they are 100% sure that the stuff is where they believe it to be, if that stuff is not evidence that *anybody* has committed a crime. A search warrant, for example, that sought out someone's perfectly LEGAL pornography would be in violation of the fourth amendment, for instance.
Now, for the most part, this tends to be moot, because generally even when one does not knowingly obtain something, if they knowingly continue to possess it, that will be constructive intent. But I don't know if there's a "public safety" exception for the Fourth Amendment that would let them seize stuff that is currently "legal" in the sense that the particular possession is not criminal, but may BECOME illegal based on subsequent actions.
period
one example.
marijuana grows wild
it can. with nobody committing a crime to get it there
if the cops have PC that marijuana is growing on a property, they can get a search warrant for stuff
it does not follow that anybody committed a crime. they MAY have, but it's irrelevant
so, what you say is not true
Note, for the citation to be valid, it has to show the following things:
1) That a warrant is valid if there's probable cause that there's contraband
2) In *that* case, it is either PRESUMED that the contraband is "wild" in the sense you describe (i.e., ceded), or the court not only so found, but found that to be ex ante considered in the case, that is, that the court found that the officers were on notice or could otherwise not *assume* this to be the case.
I will aceept, though clearly less on point, some language of "assuming arguendo" or "even if" or whatever, that stands for the above proposition. I have no doubt you can find some case that says "cotnraband is enough", but if it's not actually considering the question we're debating, the context makes such a statement irrelevant.
I'd *really* like a citation for that one. Absent something else going on, I'm pretty sure that's not true, even if you change "think might" to "have probable cause to believe." Of course, if you say that, this would really make it hard to say the indictment should stick in the first instance, no?
Hasn't the sender of the child pornography committed a federal crime, assuming it is uncontested (as it seems to be here) that the sender was knowingly transmitting the image? And isn't the copy of the contraband image in Kelley's AOL account in Virginia needed to show transmission in foreign commerce as prohibited in 2252? How else are you going to prove that the sender of the materials satisfied the jurisdictional hurdle?
i;m not a lawyer. i have a real job :)
so, i don't have even the access to a legal database to search this stuff.
i have access to having gone on scores of warrant executions, having written scores of warrants, and having testified in court scores of times on similar issues.
if i was wrong and you were right, then that means that if police have probable cause that marijuana is growing wildly (apparently) on person x's property, that they cannot get a search warrant for it unless they can show some kind of nexus to a crime?
that's absurd.
show me a cite that supports it. exceptional claims require exceptional evidence after all.
search warants are necessary where police need to seize evidence OR contraband and where there is some sort of privacy interest there.
here's the 4th amendment by the way. it does not support your claim
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
you are confusing two things.
it is true that a search warrant cannot search out LEGAL stuff if there is no evidence of a crime
if the stuff is ILLEGAL in and of itself, that is not the case.
that's what we call "contraband"
jason: I'd *really* like a citation for that one. Absent something else going on, I'm pretty sure that's not true, even if you change "think might" to "have probable cause to believe." Of course, if you say that, this would really make it hard to say the indictment should stick in the first instance, no?
are you kidding me. where does there have to be an INDICTMENT for a search warrant to issue?
you put the cart before the horse. search warrants are for stuff. there need not be, and often is not, any indictment prior to a search warrant
a suspect does not mean a person INDICTED. it means a person SUSPECTED of a crime
the term you are looking for is 'defendant'
I think in the general case you can assume that the sender has. But that assumption can be defeated a few ways - by showing that it was sent somewhere where the contraband was legal, or more obviously, by showing that the contraband was sent by someoneone who was already prosecuted (or pled) to the offense.
Of note, I don't know whether I disagree with Judge Rymer - I think it poses an interesting empirical question that should be monitored - but I think if she's right, it's on the grounds she states.
If you are just assuming that the Fourth Amendment reaches to searches for non-incriminating evidence, then I'll stop now. You...erm...win. I had previously assumed that you read a case that actually stated that fact.
But Orin, the fact remains that the police were not investigating the German sender; German authorities were doing that. Their search of Kelley's computer appears to have been for the sole purpose of finding evidence against Kelley.
as for the part about search warrants that may exonerate somebody, the best example is a search warrant for phone records of a suspect (or defendant) who has an alibi that can be proved or disproved by the evidence obtained by the warrant.
again.
cops have probable cause that there is a machine gun on an abandoned warehouse on private property.
can they get a search warrant to recover it, even though there is NO suspect whatsoever?
yes
Errrr....are you confusing the Fourth Amendment with Fed R Crim P 17?
And once again, a citation. The fact that you may have participated in constitutional violations is not evidence that they are judicially valid. The fact that you have written them is especcially not particularly useful evidence given your own admission that you are not a lawyer. If you haven't seen a case that you think proves your point, I'm not that interested in continuing the conversation, and will gladly accept that you are right in order to end it. If you have a case, I'd like to hear it - if I am wrong, which I might be, I'd rather learn that than continue to hold a wrong belief.
It is amazingly simple to remotely plant contraband files on someone's system, even to do so in a way almost anyone would not know they are there. This could be done by a rogue cop, a former lover, an upset co-worker. And that's not even assuming your system is cracked by a Trojan, a Key Logger, or you step away from your computer without password locking it for a moment.
And now every file, every bit of data in your home or office is potentially subject to a warrant. I'm not saying the good professor's reading of the Ninth Circuit is incorrect. I'm saying the Ninth Circuit blew it. This is the Silicon Valley Circuit and we depend on them to get it right.
If all my data -- heck, let's go back to Zurcher... If a dirty cop repeatedly sent nine child porn emails to two different email addresses both going to the City Desk Editor of the Seattle Times over a six month period. And as a consequence a Federal Judge issues a warrant for the child porn resulting in the cops taking every computer belonging to the Seattle Times, every data stick, CD, DVD, and back-up tape held at Iron Mountain. And yes, the warrant includes the fact that publishers enjoy special protection under the Privacy Protection Act [PPA] of 1980, as we all remember the case on which the EFF was founded, SJ Games vs. the Secret Service.
This is what Zurcher said wouldn't happen. In a non-digital world, the police searching for a few photographs in a criminal case -- what Zurcher turned on -- may have made sense. Especially as the cops didn't open locked filing cabinets or drawers. But it doesn't work that way in a messaging system or file system.
Unless you truly believe the cops are searching only for photos. Frankly they'd be failing to execute their warrant properly if they didn't look at every file on the computer including the erased data space, as well as patterns in all the apparently innocuous files. Because photos can be hidden there as well. And if in looking in regular files for hidden photo files -- which is still a legal search -- they come across files which indicate criminality or help them construct some story about criminality, or even give them a lead to get another warrant... All that is as legal as church mice.
In other words, the entire data space of the Seattle Times is fair game. Not to mention your home. Or office. Or Gmail, AOL, website, blog, MySpace and Hotmail accounts.
Which is why the Ninth Circuit needs to reconsider their own decision. It simply fails muster in today's internet world.
As the Circuit of Silicon Valley and Puget Sound, the Ninth Circuit needs to take the lead with a rehearing en banc and tee this one up for the rest of the country. Now please.
No, you are wrong. We have a constitutional provision that bars unreasonable searches and seizures. An originalist might say that it must be interpreted in light of what those terms would have meant in 1789. An originalist might also make the move Bork and Scalia make, which is to concede that some call has to be made with respect to new technology such as wiretapping or thermal imaging, and that one should analogize those to previous technologies and techniques.
But this concerns a different issue. What was reasonable in 1789-- or in the 1970's, when Zurcher came down-- is completely unreasonable in the age of the Internet, because suddenly large swaths of the population are unwitting recipients of potential evidence in criminal prosecutions.
You would have the Congress or the Justice Department correct this, but don't hold your breath-- this is kiddie porn we are talking about and nobody can ever get a bill through that impedes such prosecutions in any way! Instead, the only way to correct this is to allow the Court to reinterpret what is reasonable in light of the change in circumstances. Hence, the ONLY solution to this problem is to have a living Constitution.
I'm not saying it's never happened, but it just isn't common enough to justify your view that standard Fourth Amd jurisprudence has become unworkable.
No, YOU are wrong (*sticks tongue out*).
More seriously, I don't think I said that I "would have Congress or the Justice Department correct this." I just said that using the growth of the Internet as a reason for having a "living Constitution" is quite a leap of logic; it's equally valid to say that the Constitution doesn't forbid these warrants although policy considerations (addressable by Congress and/or DOJ) would lead us to curtail the warrants.
OTOH, Monkeyberrymoon's criticism is to a degree unwarranted, because in many cases sending spam is itself a crime, and under OK's analysis it would be consitutionally possible to get a search warrant for everybody's computer.
OTOOH, why is it constitutionally "unreasonable" to be able to get a warrant to search any computer that has illegal content, simply because the potential targets for search is so big? I'm not sure the size of the potential population of searchees has anything to do with unreasonableness.
I wasn't neccesarily trying to argue the facts of this case, only its application as precedent going forward. Taking my hypothetical, and saying that it simply doesn't apply to these facts, is unfair - that's the whole purpose of a hypothetical, no?
1) I don't know electronic crime the way you do, but I always assumed that we treated the pornography as the image, not the data bytes. If so, though - is there a federal crime when AOL people send each other pornography? That certainly doesn't appear to meet the interstate requirements of the crime?
2) While the government doesn't have to show that these "unlikely" hypothetical facts are not true, they certainly can't ignore them if they *know* them to be true - the fourth amendment is a "totality of the circumstances." The government here CONCEDED the issue that the "crime" here related to the particular defendant. While its possible that Zucher simply was forgotten by a trained DOJ prosecutor, and its also possible that this was a "test case," its also possible that the DOJ ceded the argument for some other reason.
Postscript: So I just went and looked at the case. I'm going to play "I'm right, you're wrong, even on these facts" with this one. The GERMAN government already arrested and charged the sender, and they already had the pornography in question from the sender. Because the US has no jurisdiction over Mr. Mumenthaler, and because the Germans have no need for the US's cooperation at this point (they have the porn, captured from their side), the only crime here that DOJ can investigate is the recepient's - if he committed a crime at all.
Now, if you can cite a case that responds to the challenge I provided whit - saying that traditional contraband that is not evidence of a crime and whose possession is currently not unlawful may still be seized pursuant to a warrant - then you're right. But Zucher doesn't get you there, because the evidence cannot pertain to anyone's crime other than the defendant.
I find this discussion quite puzzling, as you don't seem to be facing up to the arguments you're losing. In any event, here are the answers to your questions:
1) Courts have said you follow the bytes, not the image. See, e.g., Kammersell (10th Cir. 1999); Thomas (6th Cir. 1996).
2) Of course DOJ conceded to the wrong standard: the AUSA just goofed. You somehow see this as a concession that Kelley was the only person who might have committed a crime, but I can't figure out why you think that. The passage quoted in my post seems to be the only passage that covers this, and it doesn't seem to say that.
Regarding the postscipt: Whether the German government brought a case is obviously irrelevant. It's not like the double jeopardy clause applies to foreign prosecutions. The child pornography laws prohibit sending child pornography into the U.S. from outside the U.S. U.S. v. Harvey, 2 F.3d 1318 (3d Cir. 1993); United States v. Thomas, 893 F.2d 1066, 1068-69 (9th Cir. 1990). Whether the government was subjectively trying to go after the German guy or Kelley is obviously irrelevant. See Whren, et.
As for your "challenge," I don't get it: the definition of contraband is material that is illegal to possess. If it's currently not unlawful to possess it, it's not contraband by definition, right? In any event, your theory that the presence of contraband alone is insufficient to permit the government to obtain a warrant seems contrary to the United States Supreme Court's most elaborate discussion of the question in Warden v. Hayden, 387 U.S. 294 (1967). As Hayden explains, the government traditionally can get a warrant to seize contraband because it has a superior property interest in the contraband. Presumably that is unchanged depending on whether the contraband is "wild" or not.
As for your wish to see cases on "wild" contraband, surely you see why these cases never come up in the real world. If the "wild" contraband is out in the open, it has been abandoned and can be seized without a warrant. If it has magically fallen into a private place without someone putting it there, then the government simply goes to private place and gets third-party consent. The government won't need to get a warrant, even though the rationale of Warden v. Hayden seems pretty clearly to suggest it can.
I asked much earlier if you could provide the cases that support your views, as they seem riddled with basic errors. Am I right that you didn't respond to that request?
[OK Comments: None.]
You want to skip that step, and read into it the fact that the police can pick and choose what facts they want to build their probable cause. As a 1932 or so Supreme Court case I can't recall the name about (I read it in a Ninth Circuit case I was researching a while back, I don't have "personal use Westlaw") the police need to be kept to minimum standards of decency. And, correct me if I'm wrong, but I'm pretty sure that probable cause is considered looking at "all the circumstances."
So the question is whether they had any real probable cause of evidence that is a crime. Of course, if your citation as to Warden v. Hayden, 387 U.S. 294 (1967), is correct, then the Ninth Circuit did not need to go down that route. But, having not read Warden, and not having the time to do so now, that might be a case of some original precedent on shaky ground, which Rymer and O'Connor may have thought better than to touch.
However, if not, that leaves us with what Daniel said above. "Regarding the German offense, there would likely be no jurisdiction for this offense in the US (I doubt the government can get a warrant to help out foreign governments investigate crimes, but I don't know this for sure)." Maybe Daniel is wrong, but you can't ignore that and create a hypothetical non-German, non-arrested "sender" whose crime you are "investigating" as a pretense to get to pornography that you'd actually only like to view to arrest the person for whom you lack probable cause. I understand that this case is not your typical case, but wasn't that the criticism of Zucher when it first came out - that it would destroy the privacy rights of innocents based on pretexts?
Your proposal eviscerates the Fourth Amendment, as Jesse stated above. And, if your reading of Warden is right, then I'll concede the point anyway, on those grounds. I also concede (for the moment) that you can defend your reading of the case on badatt178. But without that, you haven't convinced me that your analysis can simply ignore the fact that the crime you base "probable cause" is on is not simply not solved at this point, but purely imaginary.
As a practical matter, I don't think the difference matters in too many cases. But the cases where it will matter a big deal will be where they have already arrested, and perhaps copped a plea with the "sender," and then, under your proposition, they could continue to investigate the "sender's crime" in order to capture more people without making an independant showing of probable cause. That is a little too far from the traditional notions of constitutional rights than I feel comfortable with.
And as mentioned before, I'm currently comfortable with Rymer and O'Connor's solution. I have no problem presuming intent in most cases. But the question you posed was not whether intent can be presumed, but whether Zucher applies. And while I think, to at least a technical degree - but certainly not a moral one - you are right if the US can build a second case against the German defendant, you can also see why the AUSA wouldn't want to build a case on such a patent lie.
Because, if they wanted to use Zucher (without Warden), they'd have to go *into court* and claim that they were investigating a crime that they had probable cause to believe happened. And they have to claim that their *sworn* affidavit was that. Now there's nothing the Judge can do at that point, under Zucher. But the AUSA and the rest of the DOJ presumably are working there out of respect for the rule of law, no?
I only find myself more confused. Contraband is of course a distinct category from evidence, see Hayden. Child pornography is contraband, not "mere evidence." Probable cause is "fair probability" see Gates, and does not incorporate a "minimum decency" requirement, see id. Daniel was obviously completely wrong that the U.S. would have no jurisdiction over a German, see U.S. v. Harvey, 2 F.3d 1318 (3d Cir. 1993); United States v. Thomas, 893 F.2d 1066, 1068-69 (9th Cir. 1990). I'm rather astonished that you keep trying to make these arguments.
In the end, I gather that your real objection is that you passionately object to the policy implications of existing law. As you put it, that law is "a little too far from the traditional notions of constitutional rights than I feel comfortable with." I can certainly respect your policy preferences, but as between what makes you comfortable and what the United States Supreme Court says the law is, I think I'll say that the law is the latter and not the former.
I am confused by the way you use the term 'law'. You claim to only be giving the current law not a mixture of it and your personal policy preferences but do you deny that the text of the 4th amendment is itself law? My best guess is that you are using law to refer to the binding precedent on lower court judges but I'm worried that you are taking a far too technical approach to this notion. In particular I will be arguing that even given current case law lower court judges should not support warrants for contraband if that contraband were to be universally and widely possessed without any government interest or response to it, e.g., if everyone got child porn spam.
I don't doubt that you have correctly identified the test and the relevant law but I'm skeptical that judicial review requires such a slavish application of obviously inappropriate precedent. I mean if the high court had hypothetically issued a ruling making the unqualified statement that any segregation by race by public school officials was unconstitutional it would still be appropriate for a lower court to refuse to apply this ruling to a case where teachers hid the black kids in the basement to protect them from the approaching armed white supremacists. Even if not explicitly stated all judicial rulings make background assumptions (principal not white supremacists) and if these assumptions don't hold lower court judges must decide if the rule articulated there is still appropriate.
So now let's go back to the hypothetical situation where child porn spam has become as prevalent as normal spam infecting everyone's inbox. Should a lower court support a search warrant for a suspected mobster's inbox based on the fact that it may have contraband or evidence of the illegal child porn spammer in it? Even if everyone knows that same contraband is in millions of other inboxes, including the judges, police and DA's?
I think the answer (as a matter of policy AND law) is clearly no. As Justin may have been getting at I think there is the implicit assumption in the precedential rulings that executing the search warrant for the stated reasons advances some plausible government interest. Maybe this interest is discovering evidence of a crime (the gun you stashed at mother's) or destroying real contraband (weed growing wild in Hawaii) but if the government ignores all the child porn spam appearing in their own and everyone Else's inboxes it has no plausible interest in looking at this guy's inbox for the same reason. As Justin put it this doesn't pass the straight face test and I would add that if judges didn't apply the straight face test we would soon be bereft of our freedoms.
If you won't repudiate this result then why couldn't the government could just declare all computers contraband but do nothing to enforce the rule and use this as an excuse to search any computer they choose? Surely you aren't arguing that lower court justices should support such an obvious end run around the constitution just because it seems to be entailed by the literal text of binding precedent?
I think what making many of us respond so negatively to your claims is that it appears you are taking the same sort of ridiculously technical view of the law that often gets non-lawyers so confused. Judges aren't supposed to interpret the law like a computer. If they did we would soon lose all our rights to clever technicalities.
My objection is with the implication that EVEN ASSUMING everyone is receiving child porn all the time in their inboxes and the government ignores it that the government could still use it as an excuse to search any inbox they wished.
Perhaps this is not what you meant to claim but it is clear that many of the commenters including myself interpreted you to be saying this.
Also I think you (Prof. Kerr) are misinterpreting Justin. He is not arguing that the current law ought to be changed to support these policy considerations but that these policy considerations are evidence that this is an inappropriate use of this precedent.
It is much like the arguments over the clause in the CAFA requiring an appeal in "not less than.." Many courts in interpreting this clause have noted that there are obvious policy reasons that one would want ensure speedy appeals and few that one would want to postpone them. Hence this is evidence that the true intent of congress in passing the law was to say "not more than.." So by noting that the policy consequences of some literal text is in clear opposition to the obvious intent we get evidence about what the law really is not just what it should be.
Similarly we assume the supreme court's precedents are meant to clarify and support some fuzzy idea of 4th amendment protections they have. This fuzzy idea clearly includes not letting the government search through anyone's email at whim hence showing that applying the test in a literal fashion allows this result is evidence that the supreme court did not intend the test to be applied in this fashion or in those cases. Hence it argues that the current law, i.e., how a circuit court judge should decide the matter, really doesn't require a literal application of the test.
The Supreme Court has rejected your "fuzzy" view of the lower court role. Lower courts have to follow what the Supreme Court says: they can't decide that times have changed, and that it would be more consistent with some broader principles to ignore the Supreme Court's rule and adopt a different approach. See, e.g., Rodriguez de Quijas v. Shearson/American Express Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.").
1) Innocent Party A holds evidence of Party B's criminal conduct. The police have probable cause to believe Party B engaged in criminal conduct, and probable cause to believe that Party A holds some evidence of that conduct. Warrant issues for search for and seizure of the particular evidence of Party B's conduct that the police have probable cause to believe exists on Party A's property. (This is Zurcher.)
2) Innocent Party A has contraband in their possession. The police have probable cause to believe the contraband exists, and is located on Party A's property. Warrant issues for search for and seizure of the contraband that the police have probable cause to believe exists on Party A's property. (The Hawaiian marijuana hypo.)
3) Guilty Party A has evidence of his or her own crimes in his or her own possession. The police have probable cause to believe that Party A is guilty. Warrant issues for search for and seizure of all evidence of Party A's guilt in Party A's possession. (Kelly, arguably.)
The broader warrant in Case 3 seems justified by the fact that allegedly guilty people are likely to harbor a lot of evidence of their own guilt, a lot more than third parties typically do. Therefore, a broader search -- of the sort that was granted in this case -- seems reasonable. But your response on David Nieporent's comment suggest that there is absolutely no distinction under the law between the warrants that are permissible in any of the above 3 cases. Even if that's true, WHY should it be true? I'm assuming we aren't bound by some sort of "command theory" of 4th Amendment law here, that the 4th Amendment is whatever the Supreme Court says it is. Even under a "totality of the circumstances" test, shouldn't the warrant in cases 1 and 2 be (typically) narrower in scope?
* I realize the defendant has the burden of proving an affirmative defense at trial, but when there is a reasonable probability that a given affirmative defense applies to a suspected crime, the government should have to make SOME showing that it is inapplicable in order to get a warrant, or else the warrant is unreasonable. For example, if it is suspected that a person has 100 vicodin pills in his home, the government must suggest (not prove beyond a reasonable doubt) that the pills are possessed without a prescription. On the other hand, if it is suspected that a person has half a kilo of heroin in his home, the government need not suggest that it is possessed without a prescription because heroin is a schedule one substance and cannot legally be prescribed... however some researchers can get a schedule one license from the DEA which would permit them to possess heroin... but that is not an obvious affirmative defense or one suggested from the evidence.
But none of this is really relevant to the analysis. As has been pretty well explained above, it's obvious in Kelley that a crime has taken place. Even if all the government knew was that some guy had put child porn in the US mail domestic stream and sent it to your house, that would still be probable cause that a crime has taken place, and would justify searching the obvious place (house) for the contraband (and yes, it's still contraband even if your possession of it is "innocent").
Valium, etc. isn't just a different kind of child porn -- there's a lot more probable cause to believe a person who is possessing child porn is doing so illegally. The agent who wanted to root around for illegal prescription drugs would have to make an unreasonable assumption that it was obtained illegally (that is, if he had nothing else). OTOH, the fact that some might possess child porn legally doesn't make a search warrant unreasonable. At the very least, if agents are going to get a warrant for a fellow agent's home to look for child porn, it will be pretty obvious that his possession of it (at his house, natch) will not be of a character we might call legal.
I guess the short answer is, just because there are distinctions to be made, and some of those distinctions are fuzzy, it doesn't make the obvious cases unreasonable.
Well, they need to show probable cause, considering the circumstances. They don't need to win a criminal convicton in order to conduct a search.
(*) But it is evidence of a crime committed by someone, even if it isn't evidence of your crime. Some of the commentary above, by various posters, seems to be based on the flawed premise that a search warrant can only be used for evidence of a crime committed by the person being searched.