A case from New Hampshire – United States v. Syphers, 426 F.3d 461 (1st Cir. 2005) – illustrates the issues that arise from a federal provision which requires the timely execution of search warrants, including computer search warrants. It also illustrates what seems to be a loophole, for lack of a better word, in the federal provision.
In November, 2001, a Concord police officer obtained a warrant to search Sypher’s home; the warrant was based on probable cause to believe Syphers had sexually assaulted two girls, who were 14 and 15 at the time. The officers seized a Gateway computer, among other evidence, and subsequently sought – and obtained – a separate warrant that authorized them to search the Gateway for child pornography. There seems to be no contention that this warrant was not supported by probable cause or otherwise met the procedural requirements of the Fourth Amendment.
The glitch arises with regard to the time the police were given to execute the warrant, i.e., to actually search the computer. The child pornography warrant issued on November 28, 2001. On the same day it was issue, the prosecutor moved that police should have an additional 12 months to complete the search “due to an `overwhelming backlog in similar computer crimes.’ The state court granted the extension.
In January, 2002, Syphers pled guilty to a reduced state charge of simple assault. He then asked for his computer, which seemed reasonable since the plea apparently resolved the investigation. New Hampshire authorities objected to returning the computer to Syphers on the ground that they needed additional time to complete their search of its contents (including, apparently, 64,000 “newly de-encrypted images” on it). They also said they needed additional time to be able to share what they found with the local U.S. Attorneys Office. The state court denied Syphers’ motion for the return of his computer, the state police completed their analysis of its contents and then shared what they had found with the FBI. Syphers is then indicted on one federal charge of possessing child pornography; the charge was based on what the New Hampshire police found on his computer.
At the federal district court level and then again at the federal court of appeals level, Syphers challenged the state court’s giving New Hampshire police an additional year to conduct the search of the computer. He based his challenged on Federal Rule of Criminal Procedure 41(e)(2)(A), which states that a search warrant must “command” the officer to whom it is issued to “execute the warrant within a specified time no longer than 10 days.” Syphers pointed out, quite correctly, that the government had been given far longer than 10 days to execute the warrant authorizing the search of his computer.
Federal authorities argued that the 10-day period incorporated in Rule 41 did not apply in this case because the search was conducted by state authorities, who are not bound by the rule. Syphers argued that the state authorities should be bound because they were executing the search for the benefit of the state authorities; Syphers, after all, had already plead guilty in state court.
The First Circuit Court of appeals rejected Syphers’ challenge. It said “the computer search that yielded evidence later used in a federal prosecution was conducted by state law enforcement pursuant to a state court search warrant. There is no evidence that federal agents participated in the state investigation, procurement of the warrant, or request for extension. Therefore, the investigation was not federal in character, and the ten-day stricture of Rule 41 does not apply.”
I decided to write about this case for two reasons: One, the more obvious reason, is this holding. On its face, it seems to mean that if federal authorities let state authorities handle the analysis of seized computers, they can avoid the requirements of Rule 41 (which I will examine in a minute). That seems fair if the state authorities are searching the computer in order to obtain evidence for use in a state proceeding, but I think it seems quite problematic if, as was the case here, the state authorities are not longer interested in using the evidence for a state prosecution. In that instance, they are, inferentially, anyway, analyzing the computer solely to find evidence that can be used by “someone else” – logically, the federal authorities. That seems an end run around the language of Rule 41.
Now, I don’t think it would be an end run around Rule 41 if the state authorities were searching the computer for their own investigation and, in so doing, found evidence that could be used to bring federal charges. I think the scenario would be more problematic if the state authorities and the federal authorities were working jointly on an investigation and the state authorities’ search of the computer found evidence that could be used by the federal authorities.
But the real issue I want to discuss is the 10-day time limit. It has become a bone of contention in the federal system, because agents and prosecutors point out – just as the state prosecutor did in Syphers – that because there is a tremendous backlog of seized computers, analysts simply cannot process a computer within 10 days from the time it is seized. The problem is being exacerbated by the increasing size of hard drives and other storage media.
Some federal agents and prosecutors argue the 10-day rule only applies to the seizure of the computer, that if they seize the computer (or other storage media) within 10 days from the time the warrant issues, they’re fine. The validity of that argument probably depends on why the federal rule (and many state rules, as well) incorporates the 10 day period.
I did some research on that a while back, and traced the 10-day period to a Prohibition-era statute, a statute that was involved in a case that went to the Supreme Court. In that case, the Court held that evidence obtained when a warrant was issued after the 10 day period had elapsed could not be used in court. The Supreme Court explained, as did the Syphers court, that the purpose of the 10-day rule is to ensure that the probable cause supporting the warrant does not become “stale.”
For example, assume federal agents get a warrant to search for and seize drugs that are located in a garage at the edge of town. They have probable cause to believe the drugs are there because an informant has told them the drugs are being stored there until they are shipped out of town. The officers obtain the warrant, but take two weeks (three?) to execute it. The 10-day rule incorporates the common sense principle that just because you have probable cause to believe evidence is in a particular place NOW, you do not have probable cause to believe the evidence will ALWAYS be there. It imports a temporal limitation into the probable cause-search warrant analysis.
The Syphers court also held that he loses on his Rule 41 argument “because there is no showing that the delay caused a lapse in probable cause.” That’s no doubt true, since the computer had been in the hands of law enforcement since it was seized; the law enforcement’s possession of the “container” of the evidence at least arguably stabilized the situation and sustained the existence of probable cause.
There’s another issue, though, that comes up with regard to the Rule 41 10-day period, and that is someone’s right to have their property – Syphers’ computer in this instance – returned to them after law enforcement has seized it and has had a “reasonable” opportunity to analyze it. I’ll talk about that in another post.