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How the Ninth Circuit Tried To End Plain View for Computer Searches Without Ending Plain View for Computer Searches:
I think the best way to understand today's remarkable Ninth Circuit Fourth Amendment decision in United States v. Comprehensive Drug Testing is that the Ninth Circuit did its best to end the plain view exception for computer searches without formally ending plain view for computer searches. Chief Judge Kozinski's opinion created an elaborate statute-like new regime to make sure the government acts like there is no plain view exception. The decision is a workaround that effectively ends plain view for computer searches by making sure the government will never collect electronic evidence in plain view in the first place. In this post, I want to explain the basic problem and how the Ninth Circuit took some very unusual steps to solve it.

I. Particularity and Plain View

  First, some context. The Fourth Amendment requires that warrants must particularly describe the place to be searched and the items to be seized. This co-called particularity requirement is designed to limit the scope of searches: Instead of conducting broad, free-ranging searches, the police have to only look in one place for only what the warrant says. One key exception to this is the plain view exception. If the police come across other evidence not described in the warrant, they can seize that evidence as well as long as it is "immediately apparent" that the item is evidence of a crime. The Supreme Court has justified this added power on the ground that if the police are lawfully in a place, they see something that is evidence, and it is so clear that the item is incriminating, they could just get a warrant at that stage anyway. Given that, the thinking goes, it makes sense to let them take it at the time rather than wait for another warrant.

  Critics of the plain view exception argue that it gives the police too much power to conduct general searches. According to critics, the police would say they are searching for evidence A when really they want to poke around for evidence B, C and D, which they suspect is there but don't have enough cause to get a warrant. That would be bad, as it would no longer ensure narrow searches. The Supreme Court has responded that this is unlikely for two reasons. First, the particularly requirement makes this unlikely because it requires police have to conduct narrow searches. If the police they are only conducting narrow searches, they shouldn't have an incentive to look for other stuff. Second, the police can only search where the evidence described in the warrant physically could be located. They can't search in narrow spaces for big things, for example. According to the Court, these realities allow the plain view exception despite fears that it will allow general searches.

II. How Computers Change Particularity and Plain View

  Computers change that. Computer evidence can be located anywhere on a very small storage device, and there can be no obvious shortcut for how to find the evidence sought. As a result, a search for evidence means that no place on the computer can be ruled out: A comprehensive search for the evidence in the warrant will bring almost everything into plain view. Further, electronic storage devices contain an incredible amount of information, and with changing technology, tend to store more and more every passing year. Suddenly the particularity requirement doesn't do the work it once did; suddenly the reasons for allowing the plain view exception don't really apply. As I argued in a 2005 article, Searches and Seizures in a Digital World:
For a variety of reasons, computer technologies may allow warrants that are particular on their face to become general warrants in practice. Computers tend to play an ever greater role in our lives as computer technologies advance, as they are likely to record and store increasingly detailed pictures of our daily experience. At the same time, the particularity requirement does less and less work as the storage capacity of computer devices gets greater and greater. Even if the property described in the warrant is a very specific file or type of information, locating that information may require a broad search for technical reasons.
  The question is, what to do about it? In my article, I discussed a few different possibilities and ended up concluding that eventually courts will have to narrow the plain view exception for computers:
the best way to neutralize dragnet searches is to rethink the plain view exception in the context of digital evidence. The dynamics of computer searches upset the basic assumptions underlying the plain view doctrine. More and more evidence comes into plain view, and the particularity requirement no longer functions effectively as a check on dragnet searches. In this new environment, a tightening of the plain view doctrine may be necessary to ensure that computer warrants that are narrow in theory do not become broad in practice.
  Eventually, I argued, the solution will be to abolish plain view for computer searches entirely. It was too early to take such a step, I argued. But "in time, abolishing the plain view exception may best balance the competing needs of privacy and law enforcement in light of developments in computer technology and the digital forensics process."

III. Understanding United States v. Comprehensive Drug Testing

  The Ninth Circuit did not come out and directly abolish plain view for computer searches in today's case. They really couldn't do that, as there would have been no case or controversy: The search hasn't even happened yet, at least as far as I can tell, so there isn't yet any evidence to exclude and any discussion of plain view directly would have just been dicta.

  Rather than wait until a search has occurred, and then announcing such a dramatic shift then, the EZ Rider & Co. did one better: They created a set of prophylactic rules that has the effect of banning plain view through ex ante restrictions. The Ninth Circuit took a truly remarkable step: It ordered the government to behave exactly as it would behave if the plain view exception did not exist. The court wrote out a list of ways that the government would act if there were no plain view exception, and then ordered the government to follow those rules as a condition of getting the warrant in the first place. The plain view exception is gutted by ensuring the government will never be in a position to try to offer the evidence to a court in the first place.

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