FEATURED IN INVESTIGATION
It's hard to keep up with the latest computer technology. I just learned what Facebook and Twitter were, and I m trying to get acquainted with those tools for use in my professional and personal lives. Like me, the law enforcement community needs to be kept apprised of the latest technology so it can tap into it to capture criminals without violating the law or the civil rights of those being investigated. Several recent federal appellate decisions shed some light on the legal framework for conducting searches of computer files of individuals suspected of criminal activity.
United States v. Williams Facts
On Jan. 21, 2010, the Fourth Circuit Court of Appeals rendered a decision in a case involving the search of computers for evidence of computer harassment and threats of death or great bodily harm. In United States v. Williams,[1] a temple and school located in Fairfax Station, Va., began receiving threatening e-mails naming several young boys who attended the school. The sender of these e-mails claimed that he was a pedophile and explained his desire to have sex with the boys. He was able to describe their physical characteristics. He also claimed in one of the e-mails, I know your boys names. I know where they go for lunch after church. I know where they live. I know when they come and leave school. There s boys I d love to sleep with right now. There is an endless supply. Boy d*** is everywhere [2] [expletive extracted]. Several other e-mails discussed the molestation of boys from the school and temple.
In conducting its investigation, Fairfax County police learned that one of the e-mail accounts from which the messages were being sent had been accessed by an Internet account registered to Karol Williams, the wife of the soon-to-be defendant, Curtis Williams. Both Karol and Curtis were active members of the temple that had received the threatening e-mails. Police sought a warrant to search the Williams home.
The affidavit in support of the warrant summarized the e-mails and police investigation, and stated that the evidence supported a belief that violations of Virginia state law had occurred computer harassment and threats of death or great bodily harm. The affidavit explained a concern for the safety of the boys attending the school and specifically highlighted the e-mail described above. More importantly, the affidavit described the training of Det. Craig Paul who had been taught to expect that adults who are engaged in sexual exploitation of children keep images and related documents with them and collect images and texts describing sexual interaction with minors and child erotica. The affidavit described the need to seize and search computers and other types of electronic media to find evidence of the above-listed crimes, including child pornography.
A magistrate judge issued a warrant that authorized officers to search for and seize from the Williams home any and all computer systems and digital storage media, videotapes, videotape recorders, documents, photographs and instrumentalities indicat[ive] of the offense of harassment by computer and threats of death or bodily injury to a person on school property. [3] The police executed the warrant the next day.
During the search, officers took computers and electronic media to later search their contents. They also seized a machine gun and silencer, both without serial numbers, which were discovered in a small lockbox in the Williams garage. Believing the box might contain evidence authorized in the warrant, an officer opened the box and observed the gun and silencer. The officer picked up the gun to ensure it was safe and discovered that the items didn t have serial numbers and seized them.
During the search of the computer files, officers opened a DVD labeled, Virus Shield, Quaranteed [sic] Files, Destroy. [4] When it was opened, more than 1,000 thumbnail views of male minors were discovered. Thirty-nine of those images were pornographic.
Curtis Williams was indicted on two counts of possession of an unregistered firearm and one count of possession of child pornography. Williams filed a motion to suppress the evidence. Williams argued that the search warrant didn t authorize the search of his computer and related digital media for child pornography. Instead, he argued, it was limited to the crimes of computer harassment and threats to do bodily harm. He also argued that the search of the DVD containing the pornographic images was not subject to the plain view exception to the search warrant. Similarly, he argued that the seizure of the gun and silencer weren t authorized by the plain view exception to the warrant requirement.
The district court denied Williams motion to suppress the evidence. At trial, Williams was convicted on all three charges. Williams appealed the district court s ruling on his motion to suppress the DVD, gun and silencer.
The issues on appeal were: 1) whether the search for and seizure of child pornography were authorized by the warrant; 2) whether the evidence of child pornography was, in the alternative, properly seized under the plain view doctrine; and, 3) whether the gun and silencer were properly seized under the plain view doctrine.
Appellate Court Decision
No doubt, the Fourth Amendment protects against general warrants that authorize exploratory rummaging in a person s belongings by requiring a particular description of the things to be seized. [5] The particularity requirement is fulfilled when the warrant identifies the items to be seized by their relation to designated crimes and when the description of the items leaves nothing to the discretion of the officer executing the warrant. [6]
However, the Fourth Circuit Court of Appeals reminded us that the terms of the warrant are not to be interpreted in a hypertechnical manner. [7] Rather, they should be read with a commonsense and realistic approach, to avoid turning a search warrant into a constitutional straight jacket. [8] The appellate court also reminded us that when the search requires a review of a large collection of documents, it s certain that some nonrelevant or innocent documents will be reviewed in order to determine whether those documents fall within the confines of the search warrant.
In this case, the warrant authorized the search of the computer and digital media for evidence of the crimes of computer harassment and threat of great bodily harm. According to Virginia state law, one commits the crime of computer harassment when he uses the computer to communicate obscene, vulgar, profane, lewd, lascivious or indecent language, or to make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act. [9]
The Fourth Circuit Court of Appeals found that while the warrant didn t explicitly authorize the search for child pornography, it found that within the context of the threats made in this case, the pornographic images of children were relevant to the purpose of the e-mails, particularly where the author of the e-mails described himself as a pedophile.
Alternatively, the court found that the seizure of the pornographic images was justified by the plain view exception to the warrant requirement. Under the plain view doctrine, police officers are permitted to seize evidence in plain view during a lawful search if 1) the officer seizing the evidence was lawfully present at the place from which the evidence can be plainly viewed ; 2) the officer seizing the evidence had a lawful right of access to the object itself ; and 3) the object s incriminating character [was] immediately apparent. [10]
Because this warrant authorized the search of Williams computers and digital media for evidence relating to the state law crimes, the warrant implied authorization for the police officers to open each file on the computer and view its contents, at least briefly, to determine whether the file fell within the authorization of the warrant. To the court s credit, it found that such a search can t be limited to reviewing the labeling of the files. This is because files on a computer can be renamed to shield criminal activity. Indeed, few people keep documents of their criminal transactions in a folder marked child pornography or drug records. [11]
According to the court, once it s accepted that the computer search implies authorization to at least a cursory review of each file on the computer, then the three criteria described above for application of the plain view doctrine are met.
Williams reliance on the often cited case, United States v. Carey,[12] was of no assistance. In Carey, the police obtained a warrant to search the defendant s computers for names, telephone numbers, ledgers, etc. for evidence of the sale and distribution of narcotics. However, when the officer searching the computers text files using key words such as money or accounts proved unsuccessful, the officers searched the directories and downloaded and then opened .jpg or image files containing child pornography. After opening the first image file, the officer continued to open every image file to confirm his expectations of finding additional child pornography.[13]
TheCareycourt found that the seized images of child pornography were neither authorized by the warrant nor found in plain view. Note: TheCareycourt stressed that this holding was limited and fact intense.[14] Indeed, the Williams court was able to distinguish the facts in the instant case from those inCarey.
In sum, the Williams court found that the search of Williams computer and digital media was authorized by the search warrant and, alternatively, was subject to the plain view doctrine. Additionally, the court found that the gun and silencer were subject to the plain view doctrine. Because thumb drives can be stored in a lock box, it was reasonable for the officer to open the lock box. In locating the gun and silencer, it s reasonable for the officer to move those items in an attempt to locate any digital media. It is also reasonable for a police officer, in moving the gun, to ensure it s safe. To do so requires the officer to pick up the gun, which in this case allowed the officer to observe the lack of serial numbers. The inspection was legitimate and was justified by the plain view doctrine.
The Bottom Line
This is just a mere sampling of the rapidly evolving, complex area of searches of computers and digital medial. What s an officer to do when it comes to getting search warrants of these items?
1. Err on the side of providing too much information in the warrant and supporting affidavit. It helped in Williams that the officer inserted the language of some of the e-mails and described his training in the affidavit.
2. If you re not sure that a computer or digital file you opened up is covered by the scope of the warrant, or the plain view doctrine, close the file immediately and obtain an additional warrant.
3. When documenting or testifying about your review of the questionable files, confirm that you weren t expanding your search, but merely continuing your search of the original items described in the search warrant. Example: InCarey,in which the court found the search of child pornography to violate the Fourth Amendment, the detective knew he was expanding the scope of the search and abandoned the drug-related search to search for more pornography. On the other hand, in United States v. Burgess,[15] the search of pornographic images of children was upheld because the officer never gave up his search for trophy photos when he came across the child pornography. Of course, merely saying you weren t expanding your search is not enough. Your words must be supported by the evidence of your search trail.
References
1. No. 08-5000, 2010 WL 251592 (Jan. 21, 2010, 4th Circuit).
2. Id. at *1.
3. Id. at *2.
4. Id. at *3.
5. Id. at *6 (citing Andresen v. Maryland, 427 U.S. 463, 480 (1976)).
6. Id. (citations omitted).
7. Id. (citations omitted).
8. Id. (citations omitted).
9. Id. at *7 (citing Va.Code Ann. 18.2-152.7:1).
10. Id. at *8 (citing U.S. v. Legg, 18 F.3d 240, 242 (4th Cir. 1994) (quoting Horton v.California, 496 U.S. 128, 136-37 (1990))).
11. See United States v. Riley, 906 F.2d 841, 845 (2nd Cir. 1990).
12. 172 F.3d 1268 (10th Cir. 1999).
13. Id. at 1273.
14. Id. at 1276.
15. 576 F.3d 1078 (10th Cir. 2009)
Do not construe this column as legal advice.
Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
