Interesting Case out of the 9th Circuit on Rules for Computer Searches

En banc, the 9th Circuit, in an opinion by Kozinski, issues a major ruling on how the government is to go about obtaining and executing warrants for computer searches.

http://www.ca9.uscourts.gov/datastore/opinions/2009/08/26/05-10067eb.pdf

IN RE: SEARCH WARRANTS EXECUTED ON APRIL 8, 2004 AT CDT, INC., In Re, No. 05-55354 ý D.C. No. SEAL 1, CV-04-02887-FMC Plaintiff-Appellant, OPINION v. SEAL 2, Defendant-Appellee.

Argued and Submitted December 18, 2008—Pasadena, California Filed August 26, 2009 Before: Alex Kozinski, Chief Judge,

Here's Kozinski's summary of the new rules:

We accept the reality that such over-seizing is an inherent part of the electronic search process and proceed on the assumption that, when it comes to the seizure of electronic records, this will be far more common than in the days of paper records. This calls for greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures. The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect. In general, we adopt Tamura’s solution to the problem of necessary over-seizing of evidence: When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:

1. Magistrates should insist that the government waive reliance upon the
plain view doctrine in digital evidence cases. See p. 11876 supra.

2. Segregation and redaction must be either done by specialized personnel or
an independent third party. See pp. 11880-81 supra. If the segregation is to
be done by government computer personnel, it must agree in the warrant
application that the computer personnel will not disclose to the
investigators any information other than that which is the target of the
warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of
information as well as prior efforts to seize that information in other
judicial fora. See pp. 11877-78, 11886-87 supra.

4. The government’s search protocol must be designed to uncover only the
information for which it has probable cause, and only that information may
be examined by the case agents. See pp. 11878, 11880-81 supra.

5. The government must destroy or, if the recipient may lawfully possess it,
return non-responsive data, keeping the issuing magistrate informed about
when it has done so and what it has kept. See p. 11881-82 supra.

Hotel Room Security

Normally when we deal with hotel room searches, we are not dealing with the Hilton of San Francisco! In this interesting defense win, the Ninth Circuit Court of Appeals held last week in United States v. Young that a hotel search violated the Fourth Amendment.

Mr. Young was given a hotel room key that opened another guest's room. Later, when the other guest noticed his laptop and i-pod missing, he called hotel security. When hotel security noticed the mistake, they went to Young's room and, when Young was not in the room, entered with a master key and searched a backpack. Inside the backpack, security found checkbooks for other people, a gun, and the outer key paper sleeve for the other room but none of the stolen stuff from the other room. Hilton security called police. When Young returned to the hotel, he found he was locked out. He then went to the front desk where he was detained and it was discovered that Mr. Young was prohibited from possessing a firearm. The police were told that they could not search the room without a warrant, so the officers had hotel security go back into the room and bring the backpack outside the room, calling it a "plain view" search.

Luckily, both the District Court for Northern California and the United State Court of Appeals disagreed that this search was a plain view search. The Court held: “[B]ecause the hotel did not actually evict Young, he maintained a reasonable expectation of privacy in his hotel room. We therefore AFFIRM the district court's order granting the motion to suppress.” The opinion has a good discussion on the expectations of privacy the hotel guest has-akin to a lessee of an apartment. Because the hotel did not evict Mr. Young prior to the police involvement, Mr. Young never lost his expectation of privacy. The mystery of the laptop and i-pod was not resolved-goes to show that maybe the hotel safe is not such a bad idea, even at the Hilton. More detailed analysis of legal issues here.

Good work Federal Defenders of Northern California!

The Impact of Arizona v. Gant

From the bloggers over at the Federal Defenders of Eastern Washinton and Idaho:

"As previously noted on this blog, the Supreme Court’s recent decision in Arizona v. Gant, 129 S.Ct. 1710 (2009) reins in police officers’ ability to search vehicles incident to arrest, holding that a search incident to arrest is only permissible if the arrestee is within reaching distance of the car at the time of the search or if there is reason to believe that evidence of the arrest will be found in the automobile.

Several cases within this district have been impacted by Gant. The most dramatic involved the following scenario: a patrol officer, running license plate numbers, discovers that a registered owner has outstanding warrants for felony escape and misdemeanor driving with a suspended license. The officer retrieves a booking photograph of the registered owner but leaves the scene after failing to spot that person in the area of the parked vehicle. A short while later, the officer returns and observes the registered owner exiting that same vehicle and beginning to walk back towards a residence, whereupon the officer approaches, arrests him for the outstanding warrants, and places him in the back of the squad car. Incident to the arrest, the officer searches the vehicle and discovers a firearm. The defendant is subsequently charged with being a felon in possession of a firearm (18 U.S.C. Section 922(g)(1)).

A motion to suppress was filed on April 20, 2009, arguing that the search was impermissible on grounds that neither officer safety nor preservation of evidence were at issue, thus placing that search outside of any exception of the warrant requirement. Gant was decided the next day. The government immediately responded by filing a short memorandum, agreeing to suppression.

Other cases in this district that have been impacted include two petitions for certiorari, which were granted, vacated and remanded in light of Gant, and another presently before the Ninth Circuit in which Judge Whaley has ordered the defendant’s release pending appeal, given the likelihood of his conviction being overturned.

These instances confirm the value of spotting and preserving issues on behalf of our clients. Even when current case law appears unsupportive, the law only changes when diligent attorneys chip away in the district courts and preserve issues for appeal."

Polk/Des Moines Assessor Property Listing - Home Owner Query

Are you curious about your next door neighbor? Do you wonder where WHO-TV's John Bachman stores all his hair product? Well ponder no more; this is a resource from the Polk County, Iowa Assessor's office to search for either address information or by last name to find out property details.

http://www.assess.co.polk.ia.us/web/inven/query/queryHome.html

GIS: A valuable search tool.

A geographic information system (GIS) integrates hardware, software, and data for capturing, managing, analyzing, and displaying all forms of geographically referenced information.

GIS allows us to view, understand, question, interpret, and visualize data in many ways that reveal relationships, patterns, and trends in the form of maps, globes, reports, and charts.  A great way for finding information out about a person or property.

Click here to visit the site.