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United States v. Mitchell and the Duration of a Computer Seizure:
The Eleventh Circuit handed down an interesting Fourth Amendment case last week, United States v. Mitchell.

  The facts: The police suspected Mitchell of downloading child pornography, and they went to talk to him at his home. Mitchell candidly admitted to downloading child pornography. Mitchell then brought an officer to his computer, and officer asked if the computer had child pornography stored on it. Mitchell acknowledged that the computer contained child pornography, although he did not consent to allow the officers to search it. Given that the computer contained contraband, the officers decided to open up the computer and take the hard drive away.

  The seized hard drive sat in the government's lab for three weeks until the lead agent applied for and obtained a warrant to search it. (The agent was out of the office on training for two of those weeks, and he didn't think he needed to be in a hurry.) An eventual search of the computer under the warrant yielded contraband images, leading to charges against Mitchell for downloading and possessing images of child pornography. When Mitchell's motion to suppress the images found on the seized hard drive was denied, Mitchell pled guilty to the charges, conditional on his right to appeal the motion to the Eleventh Circuit.

  Held, in a per curiam opinion (Birch, Barkett, Korman by designation): The conviction is vacated because the evidence found on the seized hard drive must be suppressed. The initial seizure was justified, but the police needed to obtain a warrant in a reasonable period of time to justify the continued detention and search. Three weeks was just too long under the circumstances of the case to wait given the sensitive nature of information stored on a computer:
  Computers are relied upon heavily for personal and business use. Individuals may store personal letters, e-mails, financial information, passwords, family photos, and countless other items of a personal nature in electronic form on their computer hard drives. Thus, the detention of the hard drive for over three weeks before a warrant was sought constitutes a significant interference with Mitchell's possessory interest. Nor was that interference eliminated by admissions Mitchell made that provided probable cause for the seizure.

  . . . No effort was made to obtain a warrant within a reasonable time because law enforcement officers simply believed that there was no rush. Under these circumstances, the twenty-one-day delay was unreasonable.
  The court emphasized that its holding was context-specific:
While we conclude that the delay in obtaining a warrant here was not justified, we emphasize again that we are applying a rule of reasonableness that is dependent on all of the circumstances. See Martin, 157 F.3d at 54. So for example, if the assistance of another law enforcement officer had been sought, we would have been sympathetic to an argument that some delay in obtaining that assistance was reasonable. The same would be true if some overriding circumstances arose, necessitating the diversion of law enforcement personnel to another case. We also recognize that there may be occasions where the resources of law enforcement are simply overwhelmed by the nature of a particular investigation, so that a delay that might otherwise be unduly long would be regarded as reasonable.
  I suspect some will find the result in this case rather odd. After all, Mitchell admitted that the computer contained contraband images, so it might seem irrelevant exactly when the government obtained a warrant. But the court's analysis seems correct to me. In most cases like this, the officers will obtain the target's express consent to take the hard drive. The officers here tried to get Mitchell's consent, but he initially denied them consent and they apparently didn't ask him again at the end after he admitted that the computer contained the images. Nor did the officers actually see the images themselves before they took the computer away, which would have permitted a plain view seizure (although it might have raised interesting questions about exactly what could be seized under plain view principles).

  As a result, the officers were in Illinois v. MacArthur territory: They could only deny the owner his property temporarily while they obtained a search warrant. Twenty-one days is an exceedingly long period of time to keep property that can only be temporarily seized pending the issuing of a warrant. Under that line of cases I think the court was right to say it was just too long. As best I can tell, the government apparently did not argue inevitable discovery, so that issue wasn't before the Eleventh Circuit.
D.O.:
What if police copied the hard-drive and returned original to the owner promptly. Should it change anything in this ruling?
4.27.2009 3:25am
Malvolio:
What if police copied the hard-drive and returned original to the owner promptly.
By the language of the decision, yes. Since the police are no longer interfering with his possessory interest, the clock isn't running.

On the other hand, does the prosecution need the disk? They have his confession. The defendant clearly had mens rea.

On the other other hand, who the hell tells police that he has child porn? Jeez, keep your damn mouth shut, if you're innocent and especially if you're guilty! This guy belongs in jail for being a pervert and being an idiot.
4.27.2009 3:34am
Joe Kowalski (mail):

What if police copied the hard-drive and returned original to the owner promptly.

Would the police be able to do this without a warrant? Does mere duplication of the contents of a hard drive, without examining those contents create a search? Since filing cabinets make for a decent analogy, could the police temporarily seize a filing cabinet, have someone photo copy everything in that cabinet (without looking at the actual documents) pending the receipt of a warrant?
4.27.2009 4:17am
dissenting defense:
@malvolio

i disagree with your implication that the prosecution didn't need the disk. there's a huge difference between a taped confession and what a cop claims a defendant said. go before a jury with "we stopped the guy, asked him if he had some porn, he said yes, but wouldn't let us search his hard drive. no, we don't have any proof of that porn other than us saying that he said he did." unless the defendant testifies, the statements are coming in as the cops' version of the statements. now you want to convict someone based solely off what a cop says a defendant said? everyone has met a cop that lied, and that's your reasonable doubt right there.

and this is only a procedural 4th case. look at the substantive 4th cases, where suppression motions are overwhelmingly dispositive. if the defendant wins, the contraband is out with everything flowing from it (as fruit). the state is left with only the things they gathered before the unlawful seizure. substantive 4th questions are ones of RS or PC and if the court has determined that there wasn't enough evidence to meet one of these lower standards, there's no way that the same evidence would dispel all reasonable doubt.
4.27.2009 4:41am
David Schwartz (mail):
Why is a copy not a search? Isn't going through all of something and taking detailed notes (a 'copy' that is as perfect as technically possible) the definition of a search?
4.27.2009 5:10am
Anon21:
I believe there was a thread here a while back about copying a hard drive for purposes of a search, and exactly what sort of Fourth Amendment analysis the act of copying triggers. I don't really feel like looking for it at the moment, but perhaps some else might search the site for it.
4.27.2009 5:27am
David Schwartz (mail):
I'm sure there's legal precedent involving physical documents. Is taking a photograph of every page of a physical document or physical file a search? How can it not be? The very purpose of a search is to produce an admissible 'copy' of the thing searched.

If you test white powder to see if it's cocaine, the lab test result is a 'copy' of the powder -- a precise description of its attributes and properties, as useful in a court case as the powder itself.
4.27.2009 6:57am
OrinKerr:
For those wondering whether taking just a copy would violate the Fourth Amendment, I recommend reading this (arguing that generating a copying is a seizure although not a search).
4.27.2009 7:20am
Anderson (mail):
I recommend reading this (arguing that generating a copying is a seizure although not a search).

Haven't got time right now to read the download; any short answer as to whether *reading* the seized copy is a a search?

... Re: original post, thanks for the analysis -- makes sense to me ....
4.27.2009 8:26am
Prosecutorial Indiscretion:
Has the Eleventh Circuit read Herring? I didn't see any discussion here about why suppression is an appropriate remedy; the Court seems to assume that simply because the evidence was obtained in violation of the Fourth Amendment, it must be suppressed, and I'm not sure that's the current state of the law.
4.27.2009 8:28am
rosetta's stones:

Kerr:
The seized hard drive sat in the government's lab for three weeks until the lead agent applied for and obtained a warrant to search it. (The agent was out of the office on training for two of those weeks, and he didn't think he needed to be in a hurry.)


I don't know which is the bigger idiot, the porn guy or the agent. We should be protected from both.
4.27.2009 8:41am
SeaDrive:

On the other hand, does the prosecution need the disk? They have his confession. The defendant clearly had mens rea.


The guy could be wrong. He could have been fooled by skinny 19-year-olds in pigtails.
4.27.2009 8:49am
MJH21 (mail):
Here's my problem with the court's analysis: the images are contraband. The Defendant has absolutely no legitimate possessory interest in them them at all. It's the equivalent of seizing cocaine: whether the warrant was timely securred or not, those images were never, ever, going to be returned to the defendant, thus he was not being denied possession of them.

Exclude the use of the computer, any information that was found on it linking the defendant to the images, a typewritten confession found on it, whatever. But to exclude the images themselves is taking the exclusionary rule a step too far when courts begin exluding lawfully seized, admitted contraband based on the timeliness of the warrant application.
4.27.2009 8:53am
rs:

Agent West then opened the computer's central processing unit ("CPU"), the casing which contains all the internal parts of the computer, and removed the computer's hard drive from the CPU.

I found it disquieting that´╝îmore than 30 years after personal computers first appeared (Apple II in 1977), somebody on a federal court is calling the computer case the "CPU".
4.27.2009 8:54am
David Schwartz (mail):
I think we all agree that they had to seize his hard drive in order to copy it. The question is, had they copied it, what would that have been?

So far as this is addressed in the article, it seems to argue that copying without a human interpreting the copy is not a search. This strikes me as incorrect. If police seize a notebook pursuant to exigent circumstances, can they have someone who is illiterate (or, better yet, blind) photograph every page without a warrant?

The idea that a human must look to invade privacy is, to me at least, bizarre. The crux of a search is that a copy is produced. (It matters not whether that copy is in someone's mind, on a piece of film, or in a lab report.)

While I agree that the seizure power is the power to freeze, I think the search power is fundamentally the power to extract information from something. The whole point of a search is that the original item can be returned and yet the evidence can still be examined at leisure.
4.27.2009 9:06am
Tom952 (mail):

rs:
I found it disquieting that´╝îmore than 30 years after personal computers first appeared (Apple II in 1977), somebody on a federal court is calling the computer case the "CPU".
In the United States, if a Federal Judge says the computer case is a "CPU", then the new reality is that a computer case is a CPU until it the ruling is overturned by the Supreme Court or constitutional amendment.
4.27.2009 9:13am
Anderson (mail):
In the United States, if a Federal Judge says the computer case is a "CPU", then the new reality is that a computer case is a CPU until it the ruling is overturned by the Supreme Court or constitutional amendment.

Just be thankful that the court didn't address the value of pi.
4.27.2009 9:35am
Gabriel McCall (mail):
the images are contraband. The Defendant has absolutely no legitimate possessory interest in them them at all. It's the equivalent of seizing cocaine: whether the warrant was timely securred or not, those images were never, ever, going to be returned to the defendant, thus he was not being denied possession of them.


But the images are not the only thing that was on the hard drive. The correct analogy would be, not seizing my cocaine, but seizing my briefcase which contains cocaine among other things such as business papers, family photos, and my favorite pen. I have a possessory interest in my briefcase and its legal contents even if not in the cocaine... so if you can't be bothered to get a warrant to open the briefcase and find the cocaine, I do have a legitimate complaint to make.
4.27.2009 9:42am
MJH21 (mail):
Gabriel,

That's what I'm saying. The government can't use the either your briefcase or other contents of your briefcase against you based on a failure to timely secure the warrant. But if you confessed that the briefcase has a kilo of cocaine in it, that particular piece of evidence, because it it contraband, should not be supressed because unlike the briefcase and it's other contents you have no possessory interest in contraband.
4.27.2009 9:58am
David M. Nieporent (www):
That's what I'm saying. The government can't use the either your briefcase or other contents of your briefcase against you based on a failure to timely secure the warrant. But if you confessed that the briefcase has a kilo of cocaine in it, that particular piece of evidence, because it it contraband, should not be supressed because unlike the briefcase and it's other contents you have no possessory interest in contraband.
The fact that it's contraband doesn't mean they don't need a (timely) warrant for it. The fact that you don't have a possessory interest in the contraband means that they don't have to return it to you after the fact.

If they had seized just the contraband, then your analysis would be right, I think. (Assume, e.g., that it was a c.p. magazine rather than pictures on a hard drive.) But they seized property in which he did have a possessory interest, and didn't bother to search it for several weeks for no good reason.
4.27.2009 10:21am
MJH21 (mail):
Yes, but the reason for the Warrant Clause is to prevent interference with property in which a defendant has a possessory interest. You, and the 11th Circuit, are lumping the container holding the contraband into the same bag as the contraband and essentially giving a possessory interest where there is none. Cocaine and child pornography are ultra vires. You can't legitimize them by placing them into a container which is not. The images were properly seized. Mitchell was not entitled to them before, after, or ever. How can there then be a "significant interference with Mitchell's possessory interest" in the images?
4.27.2009 10:35am
David Schwartz (mail):
MJH21: If we accepted your argument, then we could never suppress contraband. After all, there would never be a possessory interest in the contraband. There is nothing unusual about suppressing evidence X because a violation of right Y took place while gathering it. If the cops bust into my house without a warrant and find drugs, it's the right to privacy in my house that was violated but the drugs that are suppressed.
4.27.2009 10:49am
xx:
Prosecutorial Indiscretion: How would Herring apply to these facts? (And yes, I feel confident that the 11th Circuit judges all read a Supreme Court case arising out of their Circuit).
4.27.2009 11:14am
MJH21 (mail):
David,

You're mixing apples and orange ruffy. In your house example, the violation was the search and the seizure. Here, neither the search nor the seizure was the violation; only the interference with the possessory interest due to the delay in seeking the warrant (of which there can be zero doubt would have been granted). The evidence here was lawfully seized, not illegally seized like in your example. The right that the 11th Circuit is saying was violated was the 4th Amendment right to a timely warrant -- i.e. interference with Mitchell's possessory interest -- not his privacy right in the computer. The violation occurs because of and only of a possessory interest in the property. I say that any of the property in which a defendant actually has a possessory interest -- anything that is not in and of itself contraband -- the computer, the file path information, the login information, the user info, any information linking Mitchell as the owner of the computer, is properly suppressed. Why? Because he did have a possessory interest in those items. But he did not have a possessory interest in the images. Never had, never will. He was never supposed to possess those images and was never going to get those images back, so the delay in seeking a warrant did not and could not impact a possessory interest that did not exist. The violation of that interest is the only basis the court gives for their suppression.

You can't just lump lawfully seized evidence in with unlawfully seized evidence and then say that they are the same thing, just as you can't (or shouldn't) lump the contraband in with the item that contains the contraband and say the defendant had a possessory right in both.
4.27.2009 11:51am
David Schwartz (mail):
The court is simply saying that because the defendant's possessory interest in the physical hard drive, the fruits of the violation of that interest (the warrant for the contraband) should be suppressed. The violation is a but-for cause of the fruits of the warrant.
4.27.2009 12:04pm
MJH21 (mail):
I agree that's what the court is saying, but that's the problem. If the basis for suppression is possessory interest, the court should have distinguished between those items in which the defendant had and did not have a possessory interest rather than saying that because there is a possessory interest in most of the items, were going to suppress all of them.

Failing to distinguish between the two categories here is like saying because the police failed to Mirandize the defendant any statements he made post-arrest are suppressed without determining whether some of the statements were in response to questions or whether some of the statements were spontaneous. The spontaneous statements have to be separated from the responses to interrogation. Just as you have to have interrogation before Miranda applies, you have to actually have a possessory interest in an item before the warrant clause applies.
4.27.2009 12:37pm
visiting texas lawyer (mail):
MJH21 is right. Once he admits that the hard drive contains contraband, he is no longer entitled to obtain it back. It is subject to forfeiture, which makes the delay meaningless as he is never going to get it back.

He did not have a possessory interest.

Consider automobile forfeiture and possession of cocaine in the trunk. The guy never gets his car back or the other contents, they all get forfeited.

Have any of you ever litigated a forfeiture case? I've won more than one for defendants. But this one would have been a loser.

Still should be. After all, they can still move to forfeit the entire computer, and once they do, the discovery of the images is unavoidable.
4.27.2009 12:41pm
OrinKerr:
David,

If you want more on why copying is not a search, see here.
4.27.2009 12:58pm
Fub:
SeaDrive wrote at 4.27.2009 8:49am:
[quoting Malvolio at 4.27.2009 3:34am]: On the other hand, does the prosecution need the disk? They have his confession. The defendant clearly had mens rea.

The guy could be wrong. He could have been fooled by skinny 19-year-olds in pigtails.
Which is one of many reasons that the Corpus Delicti rule [PDF] would prohibit conviction based solely on his extrajudicial confession.
4.27.2009 1:07pm
hattio1:
MJH21
Who says the seizure was lawful? I get that you are saying that at the time they seized the computer they had a right to seize it. But the seizure defines not just the time when they obtained the evidence, but the entire time they have it (or at least that's one way to look at it).
Secondly, wouldn't the exception you're proposing swallow the rule? The State could hold your property indefinitely and never return it. How do you get it back if you can't show there is no contraband.

Finally, if you really believe that the child porn is not suppressible, but everything else is, how does actually help for prosecution. If we suppress everything else, they can prove there was child porn, but not that there was child porn on his computer. How do you prove that hard drive is his? You said everything else was suppressible.
4.27.2009 1:15pm
MJH21 (mail):
hattio1,

1. There was no indication that there was any problem with the seizure other than the delay in getting a warrant. If the seizure was lawful when they did it, what other argument for it becoming illegal later do you see?

2. No, the exception doesn't swallow the rule. First, the rule would only apply to things that were lawfully seized and then there is a delay in getting the warrant - a fairly rare occurance. Second, the only things that I can think of that are in and of themselves contraband are uncontrolled narcotics, child pornography, and automatic weapons - off the top of my head - which, again, would have to have been first legally seized, then held onto for a substantial period of time without a warrant being securred. Not a large group of items. Third, if the rule is to protect a person's possessory interest in an item, don't you agree that a condition precedent is that a possessory interest has to actually exist for the rule to apply?

Lastly, the defendant admitted he used his credit card to join CP sites, and that he downloaded child pornography. These admissions, coupled with the fact that the images were found in his residence (or however the district court would craft an order about what the prosecution could say) would be very likely be enough to convict him. But even if not, that's a separate question as to whethr or not they should have been suppressed in the first place.
4.27.2009 1:41pm
Jon Roland (mail) (www):
There are also evidentiary issues involved in computer files and the copying of them. Leaving aside the alleged admission of the suspect in this case, the mere discovery of porn images on a disk can be dubious in several ways. Suppose the suspect gets an email message with a porn attachment that he doesn't open. It is on the disk but if he never viewed it is he culpable? Or suppose he deleted it without opening but didn't compress his Inbox file. It would still be there to be discovered by an investigator. Or suppose he manually deleted the file without viewing it. Deletion only removes the file from the index, not from the drive. Until the space freed by the deletion gets written over it is still there, and readable traces of it may linger under the overwrite on some media. Suppose he buys a used disk drive that hasn't been thoroughly wiped. There are different ways to copy a disk, some of which preserve the contents accurately and some of which introduce artifacts of their own, especially if the copy is made to a used disk drive that wasn't scrubbed first. How many police investigators know how or are willing to make these analyses in a way that deserves credence?

Knowing what I know of the technology involved, as a juror I would have serious doubts concerning anything "found" on a disk drive, even if I did the analysis myself.

I also get reports of the feds keeping their confidential informants and retired agents in line and working for free by threatening them with prosecution for possession of child porn that they put on the guys's disk drive by hacking it. Do you want to be made a criminal because someone sends you an email with a child porn attachment with an innocuous subject line that tricks you into just leaving the attachment unopened but also undeleted until perhaps a more convenient time? I suspect many on this forum have child porn on their disk drives and don't know it.
4.27.2009 2:02pm
Eli Rabett (www):
Does this apply to those seized and sent to Guantanimo?
4.27.2009 2:04pm
einhverfr (mail) (www):
I suppose this goes to show that honesty is the best policy. If he hadn't been honest with the police, they would have had to get a search warrant before taking his hard drive, and his conviction would have been sustained....
4.27.2009 2:56pm
hattio1:
MJH21,
You are still looking at the seizure as one point in time, when they took the hard drive. But, the "seizure" was a 3 week process. And that very delay is what makes the "seizure" illegal. Yes, it would have been a legal seizure if the officer had gone back and written up a warrant...but he didn't. Therefore it is not illegal.

You say the exception wouldn't swallow the rule, but if the possession of something is illegal, it is therefore contraband under your definition. So, a gun that might be legal for you and I to own would be contraband if possessed by a felon.

Third, how do you prove that the images were found in his computer that was in his residence. By the testimony of the officer? If so, then there's no remedy for the seizure. You stated that all other files should be suppressed. Now, how do you prove the computer was his? If you put the officer up to testify that it was in his home, can the defense attorney on cross-examination ask about whether it was hooked up, whether it was activated, whether there was any viruses that may have allowed the computer to be used to transmit data, etc.
4.27.2009 3:23pm
Nick B (mail):
visiting texas lawyer/MHJ21:
So, if you own Microsoft, and you steal 0.01$, and buy a tiny bit of Microsoft stock with it, the Government can seize all your Microsoft stock, and not return any of it?

Nick
4.27.2009 3:30pm
David Schwartz (mail):
OrinKerr: I don't find the logic of that article compelling. If the government photographs every page of my journal, they have searched it. They do not search my journal "again" when they look at the pictures. That strikes me as quite absurd.

Making a copy and not looking at it is in no way analogous to having a microphone and not turning it on. Kyllo is distinguishable since Kyllo resulted in a permanent copy of the infrared emissions (in the officers).

The right to be free from unreasonable searches is not the right to keep secrets from an individual investigator. It's the right to have information not available to courts and tribunals. The power to search is the power to make an admissible copy that the government can use, in lieu of the original, at its leisure.

A "seizure" is the ability to freeze the original, so it may be searched at leisure. A "search" is the formation of a permanent 'description' that acts as an admissible copy.

It simply is unreasonable to argue that someone having photographs of you in the nude is not an invasion of your privacy so long as they don't look at them. No rational human being would feel that way. It is the existence of the information "out there" beyond your control, able to be examined at its possessor's leisure that violates your privacy in precisely the way that other searches do.
4.27.2009 4:20pm
MJH21 (mail):
hattio1,

1. You didn't answer the question: What other theory could make the seizure illegal but the warrant clause violation? If there's not another answer, and I suspect there isn't, then there's no other problem with the seizure in this case.

2. Yes, I agree, a felon cannot have a possessory interest in a gun because it is contraband and it shouldn't be suppressed under the warrant clause either. You say there's no remedy, I say there's no harm: he wasn't allowed to have it, he ain't getting it back, what possessory interest is being interfered with? That's the inquiry.

3. Even if I agreed with you - which I don't - you raise a question about the sufficiency of evidence in the government's case, which has absloutely no bearing on whether or not the supression should have been granted in the first place.

You say that there's no remedy for the seizure if the defense can't cross examine the officer about viruses - and argument which you couldn't make in good faith knowing Mitchell admitted the computer was his, that he subscribed to CP sites and downloaded CP and that the computer was hooked up when the police seized it. To your complaint I say that supression shouldn't be result oriented, how ever it ends up impacting the case has nothing to do with the legal basis for supressing it in the first place. You're advocating for a result oriented rule which says Mitchell gets to walk free just because an ICE agent attended a training class. Not every police error should or has to result in a windfall for a defendant.
4.27.2009 4:58pm
hattio1:
MJH21 asks,

1. You didn't answer the question: What other theory could make the seizure illegal but the warrant clause violation? If there's not another answer, and I suspect there isn't, then there's no other problem with the seizure in this case.


Actually that wasn't the question you asked initially...or at least not how I understood the question. But, once again, you are asking the wrong quesiton. You say, basically, the seizure is legal because there is nothing illegal about the seizure except the delay. But what you are missing is the delay is part of the seizure. If you read seizure not to include the amount of time, how does the 4th amendment EVER stop the State from taking your stuff for as long as they want? If the term "seizure" includes not just when it was taken, but also how long it was taken, then, you're asking a question which doesn't make sense; namely, except for the illegal seizure, what about the seizure is illegal. If, on the other hand, the term "seizure" only includes when it was taken, then there will rarely be anything to stop the government from taking property for as long as they want to.
4.27.2009 5:26pm
hattio1:
MJH21,
Let me pose this hypothetical. Let's pretend the officers don't have PC to take his computer (no confession), but the officers just have a hunch. So, they take his computer, hold it for three weeks, and during that three weeks do investigation that yields PC (without actually looking at the computer), should the magistrate/judge issue the search warrant for the computer? Under your theory of the term "seizure" why not? The officer developed independent evidence that led to PC of CP. The fact that it was "seized" without PC doesn't prevent the police from getting a valid SW now that they have PC.

Then ask yourself the following question, if the State can wait three weeks to try to get their PC, why not three years? Either the length of the seizure is a factor in whether or not it's an illegal seizure, or it's not.
4.27.2009 5:35pm
OrinKerr:
David Schwartz writes:
If the government photographs every page of my journal, they have searched it.
In the traditional case of a hand-held camera, this is true. Of course, it is equally true even if they do not make the photograph: Opening the journal and exposing the page to human sight is a search regardless of whether a photocopy is made. What matters is the exposure to human viewing, not the photocopying, see Arizona v. Hicks.
They do not search my journal "again" when they look at the pictures. That strikes me as quite absurd.
Well, that is formally correct: The Supreme Court has held that the initial viewing eliminates the reasonable expectation of privacy, such that the officers can view it again and it is not a Fourth Amendment "event" the second time. See, e.g., United States v. Jacobsen. I'm not sure where you are going with that, though.

More broadly, it seems that you have very strong views of the Fourth Amendment, and your views seem to me to be somewhat different from views I have come across before. I would urge you to write them up as an article, as I think readers might be really interested in your approach.
4.27.2009 5:59pm
David Schwartz (mail):
The reason you have no reasonable expectation of privacy is that once one person sees it, they can communicate that to anyone else. The same is true once a copy is made.

I'm not sure what you wanted me to see in Arizona v. Hicks, but I don't see anything to suggest that finding this a search hinged on the fact that the officers knew the serial number. Could the officers have argued that the serial number was too long for them to remember and there's no privacy interest in a partial serial number and thus it wasn't a search? Isn't that obviously absurd?

In fact, Arizona v. Hicks opposes your view: "We agree that the mere recording of the serial numbers did not constitute a seizure. To be sure, that was the first step in a process by which respondent was eventually deprived of the stereo equipment. In and of itself, however, it did not "meaningfully interfere" with respondent's possessory interest in either the serial numbers or the equipment, and therefore did not amount to a seizure."

Making a copy of something that a person considers private is a violation of that privacy interest that continues so long as somebody could look at that copy. It is, therefore, a search.
4.27.2009 6:29pm
David Schwartz (mail):
To put it another way, something is private not just because others choose not to look at it, but because we create and maintain practical obstacles to others seeing it. Removing those obstacles violates the privacy interest.
4.27.2009 6:31pm
David Schwartz (mail):
Sorry to respond one more time to myself: Note that the "search" in Arizona v. Hicks was *moving* the stereo equipment because it made it possible to look at the serial number. This supports my view that a "search" occurs when the obstacles to public disclosure that we place around things in which we have a privacy interest are removed, not just when people actually look at them.

Officer Nelson's moving of the equipment, however, did constitute a "search" separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent's privacy interest. ... But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent's privacy unjustified by the exigent circumstance that validated the entry.


Note that it is making viewing possible, when a person took efforts to make such viewing impossible, that is the search. Not the actual viewing.
4.27.2009 6:42pm
OrinKerr:
David writes:
The reason you have no reasonable expectation of privacy is that once one person sees it, they can communicate that to anyone else. The same is true once a copy is made.
What cases would you cite for that? And how can the government communicate the contents of a copy that they have never themselves observed? They would need to look through it first, and the looking through it is a search.

As for Hicks, the exposure is what makes it a search; that's the term the court uses. You seem to be saying that if the government gets a copy, but is never exposed to the contents, then that too is a search. Or maybe you think the exposure is to the government computer, which is sort of imagined as a person?

In any event, I did mean what I suggested before: You should write an article for publication on your views. You seem to have deeply felt views of how the Fourth Amendment should be construed, and I think the best way to get your views out would be through a law review article.
4.27.2009 6:51pm
whit:

On the other hand, does the prosecution need the disk? They have his confession. The defendant clearly had mens rea.


you still need (iirc the term is ) corpus delicti.

but i know the concept. applied it several times. a mere confession alone is NEVER sufficient to support a conviction.

so, in brief. the confession is not enough.

is it PC? yes.


, who the hell tells police that he has child porn? Jeez, keep your damn mouth shut, if you're innocent


please not this canard again. the "don't talk to police even if you are innocent" one.


fortunately, millions of people help themselves, society, police, etc. by NOT following this advice, and by helping police catch the bad guys.
4.27.2009 7:23pm
whit:
i'm not a huge opponent of the exclusionary rule, but this case seems a little silly.

they DID have PC to seize the computer, they were just lazy or administratively not "with it" enough to get the search warrant within 3 weeks. to me this seems like a clear case where some other sanction of the police is fine, but not dismissal of the evidence.

exclusion of the evidence when the police violate a privacy interest is one thing, but just because they are slow - with a piece of property (not like overly extending a terry stop in time, etc.) seems frankly- ridiculous.
4.27.2009 7:27pm
otto117 (mail):
An odd case indeed. In all computer/child pornography cases, the government seizes computer hard drives, discs and whatever they can get their hands on, and hold onto the materials until the end of the case, if not forever: since the hard drive is a "container" used in the commission of the offense, it is forfeitable. I have yet to see the ruling, but it must be so narrow as to amount to a mere curiosity.
4.27.2009 7:29pm
whit:

An odd case indeed. In all computer/child pornography cases, the government seizes computer hard drives, discs and whatever they can get their hands on, and hold onto the materials until the end of the case, if not forever: since the hard drive is a "container" used in the commission of the offense, it is forfeitable. I have yet to see the ruling, but it must be so narrow as to amount to a mere curiosity.


i can kind of understand the logic. they have PC to believe there is child pr0n on the hard drive. they have a duty, once they seize it to search it to determine either

1) YES, there is contraband on the hard drive. and THEN, they can keep it until after trial (at a minimum)

or

2) the guy gave a false confession, or was mistaken or whatever and there is NOT contraband on the hard drive, in which case they give it back.

this is distinguishable from when cops seize evidence of a crime where no such binary conclusion can be reached. like if the cops seize a knife presumably used to threaten somebody with, no "test' apart from the conclusion of a jury etc. will determine whether it's THE knife, whereas with the hard drive - it either has the stuff on it or it doesn't.

i just don't think exclusion of evidence is the proper remedy for basically being lazy, slow, or whatever in getting the search warrant
4.27.2009 7:32pm
David Schwartz (mail):
As for Hicks, the exposure is what makes it a search; that's the term the court uses. You seem to be saying that if the government gets a copy, but is never exposed to the contents, then that too is a search. Or maybe you think the exposure is to the government computer, which is sort of imagined as a person?
You "expose" something when you unhide it, whether or not someone looks at it. Taking an object that I keep in my custody because I have a privacy interest in it and making a copy that is outside of my control has exposed it.

Privacy is not just the fact that nobody can see something. It's also the barriers we erect to keep people from seeing it. Knocking down those barriers, such that contents *can* *be* *seen* is a search.
4.27.2009 7:40pm
hattio1:
Whit says;

they DID have PC to seize the computer, they were just lazy or administratively not "with it" enough to get the search warrant within 3 weeks. to me this seems like a clear case where some other sanction of the police is fine, but not dismissal of the evidence.


Whit, have you ever actually seen any other sanction of a police officer (by the court, not the police brass)? I've never heard of a court doing ANYTHING else to a police department or individual officers, in their capacity as officers.
4.27.2009 8:26pm
whit:
exclusionary rule doesn't really do anything TO the officers. it harms the victim of the crime, and society at large. we get paid by the hour, whichever way the case goes.

regardless, i don't recall ever seeing any such sanction. why couldn't a judge order one? fine them for every day they held the computer that was held to be excessive and pay it to the defendant. something like that.

excluding the evidence in this case, merely for being slow in getting a search warrant seems silly.

maybe that IS the problem. that there is no mechanism APART from the exclusionary rule. but resorting to same merely because it is the only option (assuming that is true) just screams out the need for there to be other options.

i think there is a qualitative difference between an unlawful search for example (which should be excluded) vs. a perfectly valid seizure of an object, but too long taken in getting a warrant.
4.27.2009 9:22pm
Prosecutorial Indiscretion:
How would Herring apply to these facts? (And yes, I feel confident that the 11th Circuit judges all read a Supreme Court case arising out of their Circuit).

Section 2-B of Herring articulates at length that suppression is not automatic. Sure, it's dicta, but it's a lengthy and cite-heavy discussion of the exclusionary rule coming from the Supreme Court. In light of this, I'd expect any court addressing a Fourth Amendment case to devote at least some language to the idea that they've considered whether or not suppression is the appropriate remedy. The Mitchell Court treats suppression as automatic; unless I missed something, the entire analysis relies on the reasonableness or lack thereof of the law enforcement conduct and does not even touch on the question of whether suppression is the appropriate response to the unreasonable search.
4.27.2009 9:41pm
OrinKerr:
David,

You have interesting theories; write them up. (I think you're wrong, as I don't think you can expose evidence to a computer, but let's get your ideas out there in the literature and see what people think.)
4.27.2009 11:44pm
David Schwartz (mail):
You mis-state what I'm saying. It's not that you "expose evidence to a computer" it's that you tear down the barriers that constitute the privacy interest. If I keep something secret, I do so be erecting barriers to its disclosure. Tearing down those barriers violates that privacy interest.

That is why *moving* the stereo was the search. It removed the barrier that kept the serial number out of plain sight. There was a legitimate privacy interest in maintaining that barrier.

This is even more so in computer searches, because people consciously erect those barriers specifically to keep their information private.

A "seizure" interferes with a possessory interest. A "search" interferes with a privacy interest. We have a privacy interest in the barriers we construct to keep our secrets secret. Copying does not (necessarily) interfere with possessory interest so it is not a seizure (unless it does). But making a copy tears down the barriers that constitute the privacy interest we were supposed to be protecting.
4.28.2009 2:00am
OrinKerr:
David,

I understand what you are saying: I just think you are wrong. Likewise, you understand what I am saying: You just think I am wrong. If you like, we can go in circles for a few more round in a comment thread that no one is reading but you and I. But if you really care about this stuff, write it up as a law review article saying why I am wrong. Put it on westlaw and SSRN, where people will see it. The world will then benefit from the exchange between us. Interested?
4.28.2009 3:12am
David Schwartz (mail):
I'll have to get some law student/professor/judge to shill for me.
4.28.2009 3:55am
GA Onlooker:
whit brings up a great point which is outside the scope of this comment thread, but is worthy of it own discussion. Namely, what other sort of penalties/incentives could be reasonably imposed on individual officers to encourage constitutional behavior, come short of the exclusion of evidence. I really don't know. I'm hesitant to take money from an officer's family and children and give it to a defendant as a result of a delay in a search. On the other hand, sometimes there are serious constitutional violations that cost the victim dearly, the taxpayers serious cash, and the officer not so much.
4.28.2009 10:36am
hattio1:
Whit says;

regardless, i don't recall ever seeing any such sanction. why couldn't a judge order one? fine them for every day they held the computer that was held to be excessive and pay it to the defendant. something like that.


Well, it still wouldn't harm the officer because the state/municipality would wind up paying it. The same way they do if the officer is sued for excessive force and loses. I don't really disagree with you that some other option should be open to judges (though I disagree as to whether exclusion is appropriate in this case). I just don't know what that would be to be effective and not violate separation of powers. Monetary sanctions will wind up being paid by the employer, though it's better than nothing. The judge obviously couldn't order the officer be put on leave as that's an employment issue for the agency.

Whit also says;

i think there is a qualitative difference between an unlawful search for example (which should be excluded) vs. a perfectly valid seizure of an object, but too long taken in getting a warrant.


This gets to the heart of why we disagree on the appropriate remedy. It wasn't a perfectly valid seizure because "seizure" includes the length of time the thing is taken. I get that at the time it was taken, the seizure was valid. But the word "seizure" covers both the "when" and the "how long" questions. This wasn't a valid seizure because the officers failed on the "how long" question.
4.28.2009 12:00pm
hattio1:
Professor Kerr says;

I understand what you [David Schwartz] are saying: I just think you are wrong. Likewise, you understand what I am saying: You just think I am wrong. If you like, we can go in circles for a few more round in a comment thread that no one is reading but you and I.


Hey,
I'm still reading it. Apparently so is GA Onlooker and maybe whit. When you account for some lurkers, there might be tens of people exposed to these ideas.

More seriously, I agree with Professor Kerr. And you don't necessarily have to make your law review perfect (though of course you should do the best that you can). Get your ideas out there. Maybe some future Supreme Court Justice will take your ideas and run with them.
4.28.2009 12:06pm
whit:

Well, it still wouldn't harm the officer because the state/municipality would wind up paying it. The same way they do if the officer is sued for excessive force and loses. I don't really disagree with you that some other option should be open to judges (though I disagree as to whether exclusion is appropriate in this case). I just don't know what that would be to be effective and not violate separation of powers. Monetary sanctions will wind up being paid by the employer, though it's better than nothing. The judge obviously couldn't order the officer be put on leave as that's an employment issue for the agency


right, but the issue in this case (at least for me) isn't so much punishing the officer (or the agency) for what was clearly an error of omission, and one i simply don't think is egregious, but the issue is getting redress for the victim - the guy who (god forbid) didn't have the use of his computer for 3 long weeks.



This gets to the heart of why we disagree on the appropriate remedy. It wasn't a perfectly valid seizure because "seizure" includes the length of time the thing is taken. I get that at the time it was taken, the seizure was valid. But the word "seizure" covers both the "when" and the "how long" questions. This wasn't a valid seizure because the officers failed on the "how long" question.



yes, in the legal sense (i realize this is a legal blog), you are correct, that the seizure wasn't valid, but there IS a qualitative difference between invading somebody's privacy interests and being slow in getting a warrant.

and i also see this as qualitatively different between a terry stop that was extended too long (and thus turns into a constructive arrest and is suppressable due to the lack of PC), and a seizure of an OBJECT that was held too long.

most of the objections to my distinction will be (and have been) of the "yes, but it's an invalid seizure, ergo EXCLUDE it" which is a perfect example of the kind of thinking that gets us into trouble.

let's remember the exclusionary rule was INVENTED as a remedy. it is nowhere in the constitution, and is (arguably) just another example of "judicial activism". it isn't holy and inviolable like a right to free speech or rkba. it's a remedy we constructed and it is often a very blunt instrument and not applicable to every "bad seizure"

we use it to create a disincentive, both systemic and specific to the individuals involved, to bad searches/seizures, etc.

but the law obviously recognizes degrees in crimes, why not recognize degrees in bad searches. just as we don't punish a simple assault the same as we punish an aggravated assault, we shouldn't remedy a "take too long to get a search warrant for an inanimate object" screwup with a "violate somebody's civil rights by searching their car/house etc. without any PC whatsoever"

if you have the SAME penalty for all these different degrees, then you are creating a fundamentally UNFAIR system, and i am speaking primarily of unfair to the victims of crime (who are most harmed by the exclusionary rule), to society in general, etc.
4.28.2009 2:12pm
einhverfr (mail) (www):
Whit:

So, suppose the choice of remedies were: 1) exclusionary rule or 2) garnishment of police officers' wages.

Which would be better? Why?
4.28.2009 2:57pm
whit:
i'm for neither.

but of course those aren't the exclusive list of remedies.

i'm for compensation for the "victim" (so to speak), iow the guy whose computer was held (god forbid) too long.

the idea that the money should come from the officer's wages is ridiculous.

the money should come from the PD. he was acting (or not acting) in his official capacity. seriously, this is the kind of case that gives lawyers a bad name. anybody with common sense looks at it and thinks its a ridiculous example of the exclusionary rule. give the "victim" some money from the public coffers and move on
4.28.2009 3:19pm
pintler:
So, Officer Krupke - a hard charging good guy - starts pulling people over with no probable cause and searching their cars without consent. His hunches are accurate - let's say that 50% of the time he catches a bad guy.

Is you proposal that the evidence is admissible when found, and the folks who were innocent get $100 from the Sheriff's budget, and we call it even?

Among other problems, I can just see carloads of folks riding around at 0300 trying to look suspicious so they'll get pulled over :-)
4.28.2009 4:10pm
David M. Nieporent (www):
the idea that the money should come from the officer's wages is ridiculous.
Certainly. After all, it's not the officer's fault he violates the constitution. Taxpayers were dumb enough to hire the guy, so they should suffer the consequences.
4.28.2009 4:36pm
whit:

So, Officer Krupke - a hard charging good guy - starts pulling people over with no probable cause and searching their cars without consent. His hunches are accurate - let's say that 50% of the time he catches a bad guy.

Is you proposal that the evidence is admissible when found, and the folks who were innocent get $100 from the Sheriff's budget, and we call it even?

Among other problems, I can just see carloads of folks riding around at 0300 trying to look suspicious so they'll get pulled over :-)



try some reading comprehension

my point (already made) is that there is a qualitative (and quantitative difference) between holding an item too long before you get a warrant vs. the type of constitutional violation you just mentioned.

it never ceases to amaze me that people won't even READ what they are responding to. kneejerk, it's what's for dinner.

so, no my proposal is NOT that the evidence in the case you mentioned should be admissible.

i am drawing a distinction between the kind of case YOU mention and the instant case.

there is a huge difference between stopping guys w/o RS (you don't need PC to make a stop, you need RS. we've gone over this) especially if you do it purposefully and holding the computer too long before you search it.

read, then respond
4.28.2009 5:31pm
whit:

Certainly. After all, it's not the officer's fault he violates the constitution. Taxpayers were dumb enough to hire the guy, so they should suffer the consequences.



that it is a "violation of the constitution" to hold a computer for 3 weeks before you do a search warrant given valid PC to seize it is hardly self-evident. that's part of the revelation of this case.

did they hold the computer too long? of course. should the remedy be EXCLUSION? (no, imo).
4.28.2009 5:33pm
David Schwartz (mail):
The problem is that there are enough cases in which all the officer cares about is getting the conviction. This may be for very good reasons -- the person he wants to get convicted may be a dangerous threat to society. But we have decided that even in those cases, we expect officers to comply with the Constitution. The only way to reliably discourage these actions is to take away the incentive. Nothing else will work.

Now it's a fair question to ask if we want to reliably discourage these actions. But if we do, the exclusionary rule is the only way.

The best argument that we don't want to reliably discourage these actions is that sometimes it really does make sense to harm someone for a greater good providing you're willing to compensate them for the harm if you get to keep the good because they're so out of proportion. The classic example -- a kid is trapped in a burning car, someone else's crowbar is on their property with a sign 'this is my crowbar, please do not steal or borrow it. I hate that'. Yes, you borrow the guy's crowbar to get the kid out of the burning car. Yes, you compensate the crowbar owner for his damages. No, you don't kill the kid to "compensate" the owner.

One could argue that some technical Constitutional violations are in this category.
4.28.2009 5:36pm
einhverfr (mail) (www):
Whit:

I guess my issue with this idea is that the exclusionary rule really has two functions. First, it prevents unlawful search/seizures from generally being useful in law enforcement. But the second function is that of punishing officers in these cases by attacking their professionalism. I.e. If this case is important to you, you will be extra cautious in order to avoid violating civil protections and if you don't the dismissal will be on your hands. It seems to me that the only other option is to ensure that officers are civilly liable when they violate these same civil protections.

Lets take a different hypo here. Suppose instead of child pornography the guy admits to trafficking lots of different kinds of drugs. So the police, without a warrant, seize (impound) his car (parked on the side of the street) and wait three weeks to get a warrant to search it, leaving him without transportation during that time. What remedy should be in place? I would argue that the exclusionary rule with these sorts of teeth is enough because it prevents the police from abusing this sort of discrepancy.

Now, note that seizing my computers would be more disruptive to my ability to earn a living than would seizing my car.

I think the exclusionary rule here is a good one. I think any alternatives would need to target the officers responsible for screwups and hold them somehow personally responsible in other ways other than "you screwed up and lost the case for us." Really, the exclusionary rule has enough teeth but it is still minimal in its influence. Anything that would replace it here would need to have to be more severe than mere moral punishment.
4.28.2009 7:23pm
Harvey Mosley (mail):

I think the exclusionary rule here is a good one. I think any alternatives would need to target the officers responsible for screwups and hold them somehow personally responsible in other ways other than "you screwed up and lost the case for us." Really, the exclusionary rule has enough teeth but it is still minimal in its influence. Anything that would replace it here would need to have to be more severe than mere moral punishment.


I agree. Of course, if we held the police civilly and criminally liable for their actions, then we could eliminate the exclusionary rule. In this case, you could prosecute the officer for theft, and still use the evidence on the hard drive in a CP prosecution. You deter police misconduct, and bad guys don't get off because the police broke the rules. To be fair to the police, keep the current system in any cases that get to the USSC, just in case the Supremes reverse course on an issue.
4.28.2009 8:14pm
hattio1:
Whit,
Why is holding the officer personally responsible, from money out of his own wages ridiculous? Don't you think cops should EVER be responsible for their own actions? I ask that because in every situation where the VC has posted a video of an officer acting like a jerk in an interaction with a citizen, your response is always the same. This officer needs more training. When it comes to violations of the constitution, your answer is the PD should pay but not the officer. What does the officer have to do to be personally responsible?
4.28.2009 8:24pm
einhverfr (mail) (www):
Harvey Mosley:

One problem though with holding police officers criminally responsible for reasonable judgement lapses is that it essentially makes the police fully answerable to the court. IMO this would pose serious separation of powers issues.

Civil responsibility is also problematic. In the end I think that the best solution is to keep the current exclusionary rules in place.
4.29.2009 5:49pm
Harvey Mosley (mail):
einhverfr:

I agree, I think the exclusionary rule is the best option we have. My point was there should be some undesirable consequences for police officers when those officers violate constitutional rights. Having the department or the city pay damages seems like letting the officers off the hook.

A question, though. Can you explain why prosecuting someone for a crime is a separation of powers issue? Assuming that the theft (seizure) was not supported by a warrant or probable cause (or whatever the required standard)? I'm not saying your wrong, just trying to understand.
4.29.2009 8:28pm
einhverfr (mail) (www):
Harvey Mosely:

Obviously when a major crime is committed in the course of an investigation (breaking and entering, assault, etc), it can and should be prosecuted.

My bigger issue is that this makes police routinely accountable to courts in most cases (as a substitute for the exclusionary rule), and unless the police department cooperates, it seems unlike the DA will take up the case, which means that really you have to get the court to initiate such cases. This could be problematic in the sense that the police would end up being subject to what would in any other job be bureaucratic sanctions at the hands of the court.

The big issue with making the PD pay though is that it ends up putting the cost of the fines in perspective with their gains. I think this would not only remove any personal interest police officers have in upholding the Constitution, but would also provide plenty of perverse incentives to officers to violate rights provided that the net benefit (between rewards for the department and the fines) is above 0.
4.30.2009 12:19am

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