As regular readers know, I’m very interested in the scope of the plain view exception for computer searches. Given that interest, I thought I would point out a passage from today’s decision of the Massachusetts Supreme Judicial Court in Preventive Medicine Associates v. Commonwealth hinting that the Court might be open to curtailing the plain view exception in computer searches. It’s just a hint, but it’s an interesting hint. More after the jump…..
Today’s case involves a request by a superior court judge to resolve two questions about the lawfulness of searching through private e-mails obtained from Google. The questions are:
“(1) Whether the Commonwealth may, by means of an ex parte search warrant, search the post-indictment emails of a criminal defendant.
“(2) If question (1) is answered in the affirmative, whether the ‘taint team’ procedure authorized in the Amended Order dated June 4, 2012, is permissible under the Massachusetts Constitution.”
The SJC answered “yes,” with “some important limitations.” It then added this interesting discussion at the end:
We take seriously the concern that a cursory review of every e-mail undermines the particularity requirement of the Fourth Amendment and art. 14, particularly where–as the Commonwealth appears to argue would be permissible and appropriate in this case–the cursory review is joined with the plain view doctrine to enable the Commonwealth to use against the defendants inculpatory evidence with respect to the pending indictments that it finds in the emails, even though such evidence may not actually fit within the scope of the search warrants obtained. [FN32] See United States v. Comprehensive Drug Testing, Inc., 621 F.3d at 1176. See also Kerr, Searches and Seizures in a Digital World, 119 Harv. L.Rev. 531, 565 (2005) (Kerr) (“computer technologies may allow warrants that are particular on their face to become general warrants in practice”); Ohm, Massive Hard Drives, General Warrants, and the Power of Magistrate Judges, 97 Va. L.Rev. In Brief 1, 11 (2011) (“Computer search warrants are the closest things to general warrants we have confronted in the history of the Republic”); Note, Digital Searches and the Fourth Amendment: The Interplay Between the Plain View Doctrine and Search-Protocol Warrant Restrictions, 49 Am.Crim. L.Rev. 301, 303 (2012) (“the plain view doctrine may transform legally authorized limited searches into prohibited general ones”).
The Commonwealth has not yet conducted its post-taint-team search of e-mails in this case. Thus, we do not know whether the Commonwealth during its search will locate particular e-mails for which it will seek later to invoke the plain view doctrine as a basis for their introduction into evidence in this case. Accordingly, we leave for another day the question whether use of the plain view doctrine as a justification for admission of evidence should be precluded or at least narrowed in the context of searches for electronic records, as a means to protect the particularity requirement of the Fourth Amendment and art. 14. See Kerr, supra at 576 (“the best way to neutralize dragnet searches is to rethink the plain view exception in the context of digital evidence”).
It’s particularly interesting that these concerns are being expressed just three weeks after the Second Circuit expressed some similar thoughts.