Upping the Ante

By Daniel Richardson

In re Application for Search Warrants, 2012 VT 102.

Here is the problem facing the SCOV in today’s decision.  A search warrant for specific information on a computer runs the risk of exposing much more that the warrant intends. 

This is because computers are our personal panopticons that effectively watch and preserve our every move.  Every on-line step we take leaves a record, and when we think we have deleted the information, the browsing history, it is usually still there. 

In this digital age, a lot of personal, mostly-legal, potentially-embarrassing information can always be found on our computers, and we have an interest in keeping this information private.  (As a professional, I do not want anyone to know about my extensive Fall Guy fan fictions—particularly the ones where Colt and Jody totally take it to the next level.) 

At the same time, police need a wide berth in these types of electronic searches because criminals can be clever with their files, mislabeling them, stripping out identifying data, or storing them in unusual areas of their hard drive. 

To put it in more concrete terms, how do the courts ensure that search warrants for computers focus on the particular, alleged criminal activity (child pornography, identity theft, etc.) and not on the legal but potentially embarrassing stuff that is likely to rise to attention during an invasive search (adulterous e-mails, embarrassing web searches, etc.)?

This is more difficult than it would seem.  Think of a filing cabinet.  If any of us have one, it is probably in the home office.  Its contents are limited.  Business records, receipts, bills, policies, some certificates, but overall, it is going to be limited in content.  That is because the filing cabinet is both a physical object of limited space and a physical repository (you actually have to put the papers in it). 

Thus if a search warrant is executed for the family’s business records, no privacy is likely to be violated by seizing or searching through the file cabinet. 

Now think of your computer.  If your house is like most others, the computer has taken a central role.  It is the instrument for record-keeping, bill paying, correspondence (professional and personal), social interactions, entertainment, hobbies, shopping, personal researches (what was the Sheriff’s name on the Dukes of Hazzard?), and more deviant activities (use your imagination). 

In other words, the computer has become the center of our lives, and unlike file cabinets or other storage sites in our house, it offers a complete and intact record of everything we and the rest of our household do. 

Here is where the problem comes to a head.  When the police have probable cause for a narrow issue—such as a case of identity theft—where there are only a handful of records involved—Does this limited scope of a warrant give entree to the suspect’s entire life? 

The answer is that it does not under the specific terms of the warrant, but it does in practice under the so-called plain view doctrine.   This doctrine states that if police—in the course of performing a legitimate search under a warrant—see evidence of a crime in plain view (such as the large bale of marijuana sitting on the kitchen counter), then they may seize this evidence without securing another warrant.

Let’s think of the file cabinet example again.  Under the plain view doctrine, if the police seize the cabinet under probable cause that the suspect has been running a Ponzi scheme, and they find child pornography in the filing cabinet alongside it, then they get to seize this evidence as well, and the suspect’s problems have just increased ten-fold.  This is reasonable because they were conducted a reasonable search focused on a particular set of records that were likely to have the documents subject to the search.  The fact that the suspect also chose to store his other illegal activity in the same space is his own fault (like the criminal who keeps the bale of marijuana on the counter).

You can see the problem, though, with a computer.  The files on a computer are broad and wide, and a search that starts off looking for something particular (proof that the suspect committed identity theft) could easily explode into a virtual audit of the suspect’s entire life. 

This goes against the spirit and the intent of the 4th Amendment.  Under this constitutional guarantee, we are protected from unreasonable searches and seizures, and police officers seeking to perform such searches must establish probable cause.  But the plain view doctrine together with the nature of a computer search has the potential to turn even the most limited warrant into a broad and invasive fishing expedition. 

The problem is vexing because while we, as a society, have a strong commitment to privacy, we also have an equally strong belief that the police need the tools and resources to investigate and detect crime.  So how do we stop a search warrant for a limited number of computer files from becoming an invasive fishing expedition?  And how do we do it so as not to frustrate the purpose of the warrant or the work of the police?

That is what the SCOV wrestles through in today’s lengthy decision.  The result splits the justices, albeit in fewer and less fundamental ways than you might suspect.

Let’s start with the facts.  Today’s case started out with some dogged police work.  New York police traced a case of identity theft back to Vermont.  The Burlington Police joined the investigation and tracked the source of the theft down to a specific wifi network, then to a specific address, and eventually to a specific person and e-mail address. 

The next step was to seek a warrant.  The police did so for any computer at the address they had found.  The warrant sought to seize the computers and review them, file-by-file if necessary.  The police sought all computers because they knew that it was likely that the suspect had hidden his criminal activity, possibly on a computer that was not his own.  The police also suspected that the suspect likely hid the incriminating files within the computer in way that they would not be marked or tagged.  As the SCOV mentions in its decision, the police did not limit their broad request but made a broad request to seize as many computers as they found and to conduct as invasive a search as they found necessary.

Once the warrant, supported by an officer’s probable cause affidavit was drafted, the investigating officers took it to a trial court judge to review and approve.  In this case, the reviewing judge signed the warrant but added ten ex ante conditions to the warrant.

These conditions broke down into roughly four categories of ex ante instructions.  First, the judge ordered the suspension of the plain view doctrine while executing the warrant.  Second, the judge ordered the search of the computer files to be completed by a third-party or police personnel segregated from the investigative team.  Third, the judge required the police to use focused search tools and not to use specialized search tools without additional, prior court authorization.  Fourth, the judge required the police to return or destroy any copies of data made that were not held for evidence. 

An ex ante condition is a condition imposed on a warrant by a judge before it is executed.  Rather than a post-warrant limitation on the evidence that is found, an ex ante condition is a limit on the way the warrant is to be executed to prospectively avoid seizures or searches outside the scope of the 4th Amendment.

As a rule, ex ante conditions are rare, and the SCOV takes up a significant portion of the decision deliberating whether such conditions are even legal.  The SCOV finds some legal precedent for such instructions in Vermont historic practice and unanimously approves their use. 

Yet beyond, this somewhat vague tradition, there is little case law or actual precedent to support attaching ex ante conditions to a search warrant.  Usually, the question is one of probable cause, particularity, and reasonableness.  If a warrant lacks one or more of these qualities, the judge will often decline the warrant and force the police to either sharpen the basis for the warrant or find another way to collect the evidence.  Allowing ex ante conditions is kind of a hedge on these conditions.  The judge is agreeing that probable cause, reasonableness, and particularity are there, she is just saying that it needs to be further limited. 

This is relatively new ground for the SCOV and for criminal practice.  In fact, the only modern case that the SCOV finds to support ex ante conditions comes from a review of search warrants stemming from the baseball doping case that arose in San Francisco. 

Yet, a unanimous SCOV is persuaded.  Ex ante conditions, while not required, are permissible, and there was no error by the trial court judge in this case by assign these conditions.  The SCOV indicates that while such conditions are rare, they serve the relatively common need here for balancing privacy with a warranted search. 

In this respect, let police, prosecutors, and defense attorneys take note.  Ex ante conditions have now been allowed and will, in principal, be upheld on appeal.  While an ex ante condition is not necessary (as the SCOV takes pains to point out), it is a valid tool for judges and will likely be used if a search warrant application appears to be using modest probable cause to take on a disproportionately large seizure. 

Tailor your warrant applications appropriately.

That said, the SCOV does not agree with all of the ex ante terms applied to this warrant.  First, the SCOV strikes down the trial court’s imposition of a ban on the plain view doctrine.  As the SCOV notes, the plain view doctrine is a legal principle and ex ante conditions cannot abrogate legal doctrines.  It can limit the mechanics of the search, but it cannot re-write the law. 

Furthermore, the plain view doctrine extends beyond the computer search.  It would be proper to invoke if the officers found evidence of criminal activity during the initial seizure of the computers, and it would be improper to limit them from using the doctrine in this manner.

Next comes the biggest controversy of the decision.  Whether to uphold the second category of conditions, which required the police to use a third-party or isolated police staff to conduct the actual computer search. 

For a majority of the SCOV, the conditions in this category are reasonable.  The separation achieves what the trial court intended—it prevents the police from simply rifling through the computer and invoking the plain view doctrine whenever it comes across something criminal.  Not that we want to protect criminal behavior, but such a blind limits the potential to misuse the Plain View Doctrine for everything on the computer.

Justice Burgess—joined by Chief Justice Reiber—dissents on this point.  For the dissent, the issue is one of privacy lost.  If the documents are reviewed, it does not matter if it is the investigating officer or a third-party.  The embarrassing documents have been disclosed to another.  In the view of the dissent, this “blind” is unnecessary.  Privacy has been compromised, and the only thing the blind does is unnecessarily restrict the police investigation.

The majority disagrees.  Privacy in this case has not been voluntarily waived and any limitation on who views the information represents a reasonable limitation that the trial court may legitimately invoke. 

For the two sides, this is where the bulk of the decision is spent.  Each spends several paragraphs trying to define what privacy is, what a reasonable expectation of it is, and why the trial court’s limitation on who can or cannot see the information makes sense in light of the privacy expectations surrounding computer records. 

The majority’s affirmation of this condition represents a substantial victory for those who champion the privacy side of the equation.  By upholding it, the SCOV affirms the trial court’s attempt to put some teeth into the unanimously accepted goal of avoiding situations where the plain view doctrine might be invoked.  The condition here will limit the police’s access to only those documents relating to the alleged identity theft documents.   

This has consequences that fall on both sides of the debate.  This limit means that if the suspect has been using his computer for other nefarious exploits, those documents will remain private.  But it also means that the suspect can also know that his embarrassing and bad (but legal) habits (that obsession with Justin Bieber, for example) recorded on his hard drive will not become part of the investigation.

For the dissent, the outcome is an unnecessary and unsupported restriction, and the police are limited for no purpose of privacy gain.

The remainder of the case is relatively short.  The SCOV unanimously agrees that the remainder of the ex ante conditions were reasonable, and they are affirmed.  The police are limited on their search mechanisms, and they must return or destroy any unused files at the end of the search.

So ends the SCOV’s review, but it marks two beginnings. 

Trial judges will be and have likely taken note of this decision and the door that it opens.  It arguably falls to the trial court now to use ex ante conditions to modify the execution of warrants.  Police and prosecutors will also likely take note, and it would be surprising if they were not inspired to preemptively offer limitations within the warrant application to make the proposed search and seizure more particular and reasonable in light of the probable cause showing and privacy concerns. 

In other words, today’s case might just be the end of a more freewheeling time when warrants for a particular allegation gave rise to large, widespread searches of computer files.  It certainly represents a bold stake laid out by the SCOV in favor of privacy preserving measures.  It remains to be seen whether this is the first of many or merely a high-watermark justified by a set of particular facts.

The other beginning is the suspect’s case.  With the confirmation of the warrants, the police can now complete the search of the seized computers, and depending on the results either prosecute the suspect or dismiss the investigation.

In the end, both beginnings promise more legal issues before the SCOV, which should keep us here busy for a little while longer.