The Volokh Conspiracy - 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.

To read the rest of this post, click here.

  You can see this in the new rules that the en banc court handed down. The rules are complicated, but the theme is that the government can never get to a position in which they will discover evidence in plain view. First, the government has to promise that it won't use any evidence in plain view. Then, the forensic search either will be undertaken by a third party who won't share the evidence with the government or else a government forensic agent who can't share the evidence with investigators. All evidence has to be returned, or in the case of contraband, destroyed. These rules will revolutionize the computer forensic industry, and cause a tremendous amount of disarray for computer crime investigators. But one thing they won't do is let the government come across evidence in plain view anymore when the government executes a computer warrant.

IV. What Next? Calling One First Street.

  From the standpoint of Fourth Amendment law, this is a breathtaking and unprecedented decision. I've read thousands of Fourth Amendment cases, and I have never read any decision like it. My tentative sense of this case is that Supreme Court review is likely. Indeed, I would think that is the point of the exercise. A decision this far out of the usual bounds is basically asking for Supreme Court review; parts of the opinion seem to be written more as food for thought for the Justices than as a traditional judicial decision.

  The interesting question is whether DOJ will want to take this case up or wait: The very unusual factual setting of a high-profile baseball dispute with the search never even having occurred might be harder for DOJ than your usual child pornography case in which the appellate court is reviewing a motion to suppress.

  Also, don't ignore the very novel use of Rule 41 motions to return property in this case. As I noted in my earlier posts on the briefs and the oral argument, the use of Rule 41 here as a sort of preemptive suppression motion is itself a remarkable innovation. It's possible that DOJ might get Supreme Court review of this use of Rule 41, get a reversal, and then have the Fourth Amendment aspect of the case off the books. We'll just have to wait and see.

	[Orin Kerr, August 26, 2009 at 8:42pm] Trackbacks 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. To read the rest of this post, click here. You can see this in the new rules that the en banc court handed down. The rules are complicated, but the theme is that the government can never get to a position in which they will discover evidence in plain view. First, the government has to promise that it won't use any evidence in plain view. Then, the forensic search either will be undertaken by a third party who won't share the evidence with the government or else a government forensic agent who can't share the evidence with investigators. All evidence has to be returned, or in the case of contraband, destroyed. These rules will revolutionize the computer forensic industry, and cause a tremendous amount of disarray for computer crime investigators. But one thing they won't do is let the government come across evidence in plain view anymore when the government executes a computer warrant. IV. What Next? Calling One First Street. From the standpoint of Fourth Amendment law, this is a breathtaking and unprecedented decision. I've read thousands of Fourth Amendment cases, and I have never read any decision like it. My tentative sense of this case is that Supreme Court review is likely. Indeed, I would think that is the point of the exercise. A decision this far out of the usual bounds is basically asking for Supreme Court review; parts of the opinion seem to be written more as food for thought for the Justices than as a traditional judicial decision. The interesting question is whether DOJ will want to take this case up or wait: The very unusual factual setting of a high-profile baseball dispute with the search never even having occurred might be harder for DOJ than your usual child pornography case in which the appellate court is reviewing a motion to suppress. Also, don't ignore the very novel use of Rule 41 motions to return property in this case. As I noted in my earlier posts on the briefs and the oral argument, the use of Rule 41 here as a sort of preemptive suppression motion is itself a remarkable innovation. It's possible that DOJ might get Supreme Court review of this use of Rule 41, get a reversal, and then have the Fourth Amendment aspect of the case off the books. We'll just have to wait and see. Related Posts (on one page): What Happens When Comprehensive Drug Testing Meets the New Rule 41?: An Interesting Consequence of United States v. Comprehensive Drug Testing: How the Ninth Circuit Tried To End Plain View for Computer Searches Without Ending Plain View for Computer Searches: Do Magistrate Judges Have a Power to Refuse To Sign Warrants Based on Expectations of How a Warrant Would be Executed?: Ninth Circuit Enacts Miranda-Like Code for Computer Search and Seizure: Ninth Circuit Hands Down En Banc Decision in United States v. Comprehensive Drug Testing: Oral Argument in United States v. Comprehensive Drug Testing: An Analysis of United States v. Comprehensive Drug Testing: