"Plain View" exception in the digital age

Great Debates
1

Just back from yelling at those damn kids to get off my lawn, get a haircut, and stop listening to that rock and roll music… and reading about a case in the Ninth Circuit called United States v. Comprehensive Drug Testing, Inc.

You see, back in the old days life was simple. There was this thing called the plain view doctrine, which said that anything police saw from any place where they legally were was admissible without violating the Fourth Amendment’s guarantees with respect to search and seizure. If police walk down the side and pass by your front window, and see mounds of cocaine, machine guns, and bestiality porn, they can act on that evidence. And if they’re searching your house for a stolen stereo system pursuant to a warrant and uncover a stash of counterfeit credit cards, they’re admissible, even though the warrant described only the stereo system.

But now we’ve got these new-fangled “computer” things, and the question gets a little muddier. When a warrant describes electronic information, what, if anything, is “plain view?”

In the case at hand, the government was investigating steroid use in baseball. They had probable cause to believe that ten specific players were using steroids, and they obtained a warrant for computers owned by a company, Comprehensive Drug Testing, that had done the steroid testing. Note that the company was not itself accused of wrongdoing – just that their computers held evidence of a crime.

Now, when an individual’s computer contains evidence of a crime, the typical approach is to physically confiscate the computer. This allows a detailed and focused search, pursuant to a warrant, for items responsive to that warrant. Here, the computers belonged to a third party, and seizing them would have been disastrous for the business. So the government, after some negotiation with the company, served the warrant by copying a directory of files and going away.

An examination of this directory turned up evidence implicating more beyond the original ten players. The government relied on this information, kind of “in plain view” in the directory, to expand their investigation.

The current challenge may turn on some technical, procedural issues (for the law geeks amongst us, it’s not a motion to suppress, but a Rule 41 motion for the return of property unlawfully seized on behalf of unindicted players and the company).

But as a broader, more general issue: how, if at all, should the plain view doctrine be incorporated into the world of searches of digital media?

2

{curious aside} If those implicated did not hold a privacy interest in the computer files, what 4th Amendment issues are raised? IIRC I have no standing to challenge evidence wrongfully seized if I had no expectation of privacy in the first place. {/curious aside}

I don’t think this monkeys with the gist of your question.

3

I’m not sure I understand the present case you’re offering up as an example. If Comprehensive Drug Testing was the third party, but they own the computers and did the testing, who was the second party, and what was the nature of their access to CDT’s computers? It’s hard to get a handle on what ‘plain view’ should mean here without that.

But in general, my thought is that doing something that’s electronically in plain view should require an action that any normal person should know that lots of people can see.

For instance, if I say things about myself on a Facebook page, that’s in plain view. If I use a cell phone, with the result that an automated electronic network knows my whereabouts, that’s not.

It may be that the Feds can see your cell location without a warrant under some other doctrine, but ditto that. I’m giving knowledge of my location to unconscious machines for a very specific and limited purpose. The idea that because I’m freely sharing my location with ‘Verizon’, there’s no reason I should consider it protected from the Feds, is legal bullshit.

4

No, but to briefly answer anyway, the files were records of blood tests in which the players had privacy interests.

5

I think by “third party”, he means that they were neither the state nor the accused.

6

But how do we apply that to my stolen stereo / cache of credit cards example? You obviously believe that the credit cards are in a closet, let’s say, and no one can normally see them. Police looking for a stolen stereo open the closet door and see thousands of Visa cards. They’re now admissible.

In this case, police had the legal right to check a computer directory for ten players’ information. In looking at the directory, they found other players’ incriminating info as well.

7

If I’ve told you once, I’ve told you a thousand times; don’t tell people about the parties at my place.

IANAL, but it seems to me that in most cases “plain view” would be relatively easy to establish in the case of the examination of a computer system, the problem being that you would need a detailed description of the manner in which the computer was examined.

For instance, suppose they are looking for steroid information on John Slugger, and a search for his name turns up an Excel file with the names of various players and deliveries of homer-juice to their homes. In addition to Joe Slugger’s name, the Excel file also include Pedro Pitcher. That would be, it seems to me, a clear case of plain view evidence. Pedro Pitcher’s name was discovered as an inadvertent result of a legitimate search for information related to Joe Slugger.

On the other hand, suppose the investigator finds mound of evidence on Joe Slugger and then goes probing into files unrelated to Mr. Slugger, and only then finds information on Pedro Pitcher. I would say, just off the top of my head, that that is not a case of plain view.

However, I’m not a lawyer, so let me throw a question back at you.

Suppose the police confiscate, instead of a computer, some other apparatus of complex design that might hold evidence - a car, let us say. The warrant calls for a search for machine guns. The investigator looks under the sun visor and finds an envelope filled with cocaine. It cannot be reasonably argued that a machine gun could be hidden under a sun visor. Is that in plain view by virtue of the entire car being seized? Is the whole car open for search?

8

Well, the car’s not the best example, simply because there’s another exception that would likely let in the cocaine if the car’s been impounded for search.

But in general, your instinct is right: the police can’t search a place that could not possibly contain the items being sought. And every warrant must describe “with particularity” the items to be seized. So, yes – if you’re searching for a machine gun in a home, you can’t open a purse, a wallet, or a brown lunch sack in the course of that search.

9

What’s that exception?

10

I, like RickJay, think this can be applied to the computer search. Just like searching a file cabinet, you are looking at player Z, you don’t get to open the file for player A. However, if you pull out a file labeled “Blood Tests, Baseball”, and A is listed right along side Z as getting a particular test that would suggest steroid use, I’d call that Plain View.

If the files in question would be normally hidden to prevent discovery, then I think all bets are off. It would be like searching a house for a joint, it could be absolutely anywhere, tucked into any crevice, and disguised as practically anything. You’d have to tear the place apart to be sure you searched all the possible locations, and you’d naturally discover all sorts of things.

11

How do you get to make that determination, though? I think in this instance, it may be safe to assume that a medical office would keep things pretty organized – you probably wouldn’t have “Baseball Blood Tests” mixed in with the “Underage Abortions” files.

But if you’re searching a suspect’s computer for child pornography, it gets muddier. I doubt many perps have a folder labeled “My Child Pr0nz,” but I suppose it’s possible.

I guess what I’m asking is, how do you decide beforehand whether something is probably hidden to prevent discovery?

12

Inventory search. When a car is impounded by police, they are permitted to search the entire car for the purpose of inventorying its contents. This is intended to protect the police from claims of missing property (and protect the owner’s property, to boot).

13

I can see two ways to approach the issue:

  1. The current SCOTUS is very pro-law enforcement, and I’d expect them to hold something like "The police were lawfully in a position to view the contents of the directory, and therefore may view anything in that directory (or hard drive, file, whatever the storage media may be).

  2. A more restrictive view, that would seize on the particularity requirement, and say that the police must narrowly draw the warrant to obtain only the files needed for the players under indictment.

The problem with the second approach is that useful information could, in theory, be stored anywhere. If I were in charge of maintaining computer records I did not want law enforcement to find, I’d probably put them in unlikely places. That may not be a factor in this case, where the records where made and controlled by a third party, but from what I’ve seen, SCOTUS tries to make things easy for the cops when given the chance.

14

It seems like it might hinge on how the files on the computer are organized, and the best analogy I can come up with is physical files.

If, instead of keeping the data on the computer, they lab kept data printed out on paper, and in filing cabinets. There are a few different scenarios:

  1. The files are all unlabeled, so the police go through every file looking for something that matches the players they’re investigating
  2. The files are labeled, and the police only take the ones that correspond to the players they are investigating. Some papers relating to another player are accidentally contained within one of the folders.
  3. Same as 2, but instead of some papers in the wrong file, the police accidentally take some files that aren’t labeled as belonging to the players under investigation.

How would the plain view doctrine address those? It should address the digital analogues (1. single database, 2. separate directories w/ misfiling, 3. Separate directories, but police took more than they should have) similarly.

15

Could you make an analogue with a safe or a desk? I.e. if the police cannot get into a locked safe or drawer, they cannot get into a password-protected computer? And if they can’t get into an unlocked drawer they can’t get into an unprotected computer? Equally, if there’s a piece of kiddie porn on the display when they enter, it’s just the same as a piece of kiddie porn on a desk?

16

Couldn’t police be accused (and homeowners be similarly protected) from accusations of looting while conducting a search warrant if a home were to be afforded the same “protection” as a car? “Your Honor, I had a thousand dollars in cash in my dresser when the police came in with a warrant and it wasn’t there when they left?” If a judge can say, “Sorry about that, but nothing I can do,” why wouldn’t this reasoning apply to a car as well?

I realize that the car would actually be entirely in police custody, but a house is a big place, and a homeowner can’t be watching several cops in several rooms at once.

17

[Law & Order Mode]

**Defense Attorney: **You Honor, I move that this evidence be disallowed. The warrant calls for a search for records regarding “John Slugger,” not my client Joe Slugger. Further, since this is all the evidence the prosecution has, I move for an immediate dismissal of all charges.

Jack McCoy: Your Honor, this is preposterous - clearly this is just a typographical error. There is only one person named “Slugger” that we’re investigating in this case. My assistant obviously just conflated the very similar and common names “John” and “Joe.”

Defense Attorney: That doesn’t alter the fact that the warrant is faulty on its face with regards to my client.

Judge: You’re right. Motions granted - all charges are dismissed. And Jack, you might want to get an assistant who’s less hot, but a better spell checker.

[/Law & Order Mode]

18

Does it make any difference whether the incriminating information is in the files, or just in the file structure?

In the files: If they’re looking for evidence on these ten guys and, while reading the files on them, they find their lab results have notes that lead the police to believe they’re cheating, that’s obviously not good. If the folder those files are in contains files for 247 other players, do they have a right to read those files as well, and act on information found within them?

In the file structure: If, in the above, the police don’t have the right to read the files, but those ten players’ files are in a folder labelled “Cheater McCheaterpants”, and there are 247 other players’ files in that folder, is that enough to give the police the right to examine the other 247 files?

19

Bricker, I assume you’ve read Orin Kerr’s post on this on VC. But if not, it’s worth a read–so too is his law review article on the subject.

I’m sort of partial to abolishing the plain view doctrine altogether as it applies to electronic searches. Prof. Kerr discusses this toward the end of the article linked in the post above.

20

Even aside from the inventory search mentioned by Bricker, this is still a bad analogy. A machine gun simply can’t be underneath a sun visor. But suppose that the trunk of the car contained two big boxes, one labelled “ordinance”, and the other labelled “sunglasses”. Surely, the police looking for machine guns would be allowed to check both boxes. This is analogous to the case with computer files: Any file with any information can fit into any folder; it’s just the labels on those folders which distinguish them, and one can label folders any way at all.