Tuesday, June 17, 2008

Searches Must Stay within the Scope of the Warrant

As I’ve noted before, the 4th Amendment prohibits “unreasonable” searches and seizures, and a search or seizure will be “reasonable” if it is conducted pursuant to a warrant.

The 4th amendment is interpreted as incorporating a preference for searches that are conducted pursuant to a search warrant, so that’s pretty much the best way for law enforcement officers to ensure that a search is constitutional.

But that does not exhaust the “reasonableness” required for a search. The search must also be “reasonable” in scope, i.e., it has to remain within the scope of what the warrant authorizes officers to search for.

So if police have a warrant to search a home for two stolen large-screen TVs, they can only search (i) in places where the TVs could be and (ii) until they find what they’re looking for. If they look in places where the object of the search – the TVs – could not be, like a dresser drawer, that search is unreasonable and the evidence it turned up will be suppressed. The same thing will happen if the officers keep searching after they find the two TVs the warrant authorized them to search for.

A recent case from the Air Force Court of Criminal Appeals illustrates how important the scope requirement can be. Here are the facts that led to a motion to suppress evidence:
On 12 February 2005, [appellant] attended a party with other airmen, and a game of strip poker ensued. On 25 March . . . Air Force Office of Special Investigations (OSI) received information that an alleged sexual assault had taken place during . . . the . . . party. The appellant was not the suspect. . . [but] . . . OSI discovered that [he] took pictures at the party, which included photographs of partially nude people who attended the party.

OSI agents approached the appellant. . . . [He] told the agents he had saved the party pictures on his laptop, and took the agents to his off-base apartment to show them the pictures. [He] offered to give the agents copies of the images saved on his computer, but he would not consent to turning over his laptop. After reviewing the pictures provided, the OSI, convinced that the computer may contain more pictures than provided by the appellant, sought and received search authorization from the military magistrate for the appellant's off-base quarters. Upon receiving search authorization, the agents went back to the appellant's apartment and seized the laptop and a digital memory card. During the course of the seizure the agents . . . advised the appellant that he had no choice but to provide the computer and memory card because they contained possible evidence. . . .

The following Monday, OSI, realizing that they had executed an off-base search improperly, contacted United States Magistrate Judge SO to obtain a valid search authorization. Judge SO asked if the items had been searched yet and SA AW informed the judge that the items were in a secure area and had not been searched. Judge SO issued the warrant. The search warrant authorized search and seizure for `one Toshiba laptop computer and one digital memory card used to record photographs taken on February 12, 2005.’
U.S. v. Osorio, 2008 WL 2149372 (A.F. Ct. Crim. App. May 9, 2008).

The search for and seizure of his laptop and memory card was improper because the OSI agents obtained the warrant from a military magistrate, who was not authorized to issue warrants to search premises that were off-base, i.e., not on military property. Since they did not begin searching the seized items until they got a valid search warrant from a U.S. Magistrate, the subsequent search would have been “reasonable.” It seems to me that the seizure of the items was not “reasonable,” and might have been a basis for suppressing what was later found, but that doesn’t seem to have been an issue here.

After the OSI had obtained that valid search warrant, one of their agents Special Agent “JL” – referred to in the opinion as SA JL – was asked to prepare a forensic mirror image of the hard drive on the laptop so it could be sent to the Defense Computer Forensic Analysis Laboratory for analysis. U.S. v. Osorio, supra. This is where it gets interesting:
[SA JL] was not . . . assigned to the case and was unaware of the . . . scope of the search warrant. . . . She was simply . . . asked to prepare the hard drive for shipment. In order to confirm she had a made a correct functioning mirror image of the hard drive . . . SA JL used forensic software to view all the photos on the computer at once as thumbnails. Once she confirmed the mirror image, she had done everything necessary to fulfill her technical task.

Despite having completed her task, SA JL began reviewing the thumbnails, and noticed several . . . nude persons, and decided to open the thumbnails to make sure the pictures were not `contraband.’ Without opening the thumbnails, it was impossible for her to determine the true contents of the picture. Therefore, she double-clicked on one thumbnail and saw what she believed to be the image of a nude minor. She continued to open thumbnails to see how many similar pictures were on the computer and noticed several more pictures of nude minors. She then searched to see if the pictures were saved to the computer or just stored in temporary internet files, the latter of which could show that the pictures existence on the hard drive may not have been intentional. She searched the computer for 20-30 minutes and then informed the OSI agents about the photos depicting nude minors.
U.S. v. Osorio, supra.

The agents sent the mirror image to the lab; the lab got a second search warrant authorizing a search of the laptop for child pornography, which they found. Osorio was charged with and convicted of possessing child pornography. U.S. v. Osorio, supra. He appealed, arguing that SA JL’s search of the images on his laptop violated the 4th amendment because it was not within the scope of the search warrant that authorized her having access to the hard drive. Opening the thumbnails was a “search” because, as noted above, she couldn’t tell what they were without doing so. That means her opening them was an incremental, additional intrusion on Osorio’s 4th amendment right to privacy in the contents of his laptop.

So he was raising the scope issue noted above – he was essentially saying, to continue the analogy I used earlier, that SA JL went looking for TVs in dresser drawers, i.e., went way beyond what the warrant authorized her to do.

The Air Force Court of Criminal Appeals agreed with Osorio:
SA JL exceeded the scope of the search warrant the minute she opened the thumbnail to . . . `make sure it was not contraband.’ SA JL admitted on cross-examination that she opened the thumbnail to verify if the picture was child . . . pornography, not to verify it was a mirror image of the other computer or to review a photograph taken on February 12, 2005. Having testified that . . . once she opened the picture directory tree, her job was done, we find that SA JL was not acting within the scope of the warrant at the time of the discovery of the first suspect image.
U.S. v. Osorio.

Since SA JLwas not acting within the scope of the warrant, her viewing the images was an “unreasonable” search that violated the 4th amendment. And since her viewing those images provided the probable cause for the second warrant – the one the lab got before they analyzed the laptop – that warrant was invalid. The Air Force court of appeals held that the

seizure of evidence upon which the charge and conviction was based was a consequence of an unconstitutional general search and the military judge erred by refusing to suppress it. Accordingly, the findings and the sentence are set aside and the charge dismissed.
U.S. v. Osorio.

So, there's an object lesson for law enforcement here: Always, always stay within the scope of your warrant and, when in doubt, get a second warrant that specifically authorizes what you want to do.

There’s probably also some kind of object lesson for people who take photos at strip poker parties, but I’m not sure what it is.

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