As Wikipedia notes, the term ex ante “is a phrase meaning
`before the event.’” This post examines
a recent decision from the Vermont Supreme Court in which it considered whether
a judge who is asked to issue a search warrant can impose conditions on the execution
of the warrant. In re Search Warrant, ___ A.3d ___ , 2012 WL 6217042 (Vermont
Supreme Court 2012).
The case began in December of 2010, when a Burlington Police
Detective was assigned to investigate an identity theft case transferred from
the New York State Police. In re Search
Warrant, supra. At some point, he applied for a warrant to search a home at
145 Pleasant Avenue in Burlington and, in so doing, submitted an affidavit in
support of the application that included, in part, the following statements:
The crime was reported by a resident of
New York. In an interview . . . the victim stated that someone had fraudulently
attempted to apply for credit cards online using his name and identifying
information and to change his address with the United States Postal Service. .
. . [T]he detective contacted one of the banks and obtained the Internet
protocol (IP) address that was
used to submit one of the fraudulent applications.
The bank also provided the information
submitted in the online application, which listed the victim's true name and
social security number, but contained other information that was false,
including an address of 145 Pleasant Ave ., Burlington, Vermont, and an email
address of gulfields@aol.com. Both police and motor vehicle records indicate
that 145 Pleasant Avenue is occupied by Eric Gulfield.
In re Search Warrant, supra. (For a review of the process an officer uses to get a search warrant, check out this site.)
The detective checked with the Internet Service Provider and
learned that when the fraudulent application was submitted, the IP address used
belonged to a subscriber listed at 134 Pleasant Avenue. In re Search Warrant, supra. He visited the location and saw there
was an open (not password protected) wireless connection coming from 134
Pleasant Avenue that was “likely strong enough to access from 145 Pleasant
Avenue.” In re Search Warrant, supra. He interviewed the resident of 134
Pleasant Avenue and obtained permission to access the router log to determine
if other computers had used the wireless connection. In re Search Warrant, supra. From this log, he discovered that the
previous month the router was accessed several times by a computer with an
assigned name of GulfieldProp–PC. In re Search Warrant, supra.
Based on this information, the detective applied for a
warrant to search 145 Pleasant Avenue for `evidence of the crime of Identity
Theft.’ In re Search Warrant, supra. The application “requested permission to seize
records `in whatever form they are found,’ including any computers or other
electronic medium.” In re Search Warrant,
supra. It did not
list one person as the target
of the search; rather, it noted multiple people were living in the target
address and requested permission to seize electronic devices regardless of
ownership. As justification, the affidavit explained that electronic
information may be easily moved between different computers and other
electronic storage devices.
Reciting general information about the
large volume of information stored on a computer, the technical expertise
required to search data that can be hidden, password protected, or encrypted,
and the time involved in such a search, the application requested authorization
to seize any computers for search off-site.
In re Search Warrant,
supra.
The judge to whom the application was submitted granted a
warrant to “search the residence and to seize electronic devices to be searched
at an off-site facility for as long as reasonably necessary.” In re Search Warrant, supra. He also entered a separate order which said “`[t]he
application to search the computer belonging to Eric Gulfield is granted’”
and attached conditions:
(1) restricting the police from relying
on the plain view doctrine to seize any incriminatory electronic record not
authorized by the warrant -- that is, `any digital evidence relating to
criminal matters other than identity theft offenses’; (2) requiring third parties or specially trained
computer personnel to conduct the search behind a `firewall’ and provide to State
investigatory agents only `digital evidence relating to identity theft
offenses’; (3) requiring digital evidence relating to the offenses to be
segregated and redacted from surrounding non-evidentiary data before being
delivered to the case investigators, `no matter how intermingled it is’; (4)
precluding State police personnel who are involved in conducting the search
under condition (2) from disclosing their work to prosecutors or investigators;
(5) limiting the search protocol to methods designed to uncover only
information for which the State has probable cause; (6) precluding the use of
specialized `hashing tools’ and `similar search tools’ without specific
authorization of the court; (7) allowing only evidence `relevant to the
targeted alleged activities’ to be copied to provide to State agents; (8)
requiring the State to return `non-responsive data’ and to inform the court of
this action; (9) directing police to destroy remaining copies of electronic
data absent judicial authorization otherwise; and (10) requiring the State to
file a return within the time limit of the warrant to indicate
precisely what data was obtained, returned, and destroyed.
In re Search Warrant,
supra.
The State of Vermont then filed a motion “for extraordinary
relief” with the Vermont Supreme Court
requesting that the Court strike the ex
ante conditions from the warrant. In support of its petition, the State argues
that the judicial officer lacked authority to impose ex ante restrictions on
the search; that the conditions are unnecessary and impede legal development in
the area of computer searches; and that the conditions impermissibly impede
effective law enforcement investigation.
In re Search Warrant,
supra. The American Civil Liberties
Union submitted an amicus curiae brief which argued that the 4th
Amendment requires “more stringent” standards for searches of computers because
they “are fundamentally different from paper records or filing cabinets because
of the vast volume of personal data stored in a computer and due to a
computer's unique ability to retain hidden and deleted information and to act
as a portal to other remote storages of information.” In re
Search Warrant, supra.
The Supreme Court began its analysis of the arguments by noting that it is “settled law” that “the State is bound by” the conditions
included in a search warrant, such authorization to conduct a no-knock entry. In re Search Warrant, supra.
The State argued that this “settled law does not apply to ex ante instructions
-- that is, instructions . . . on how to execute the warrant.” In re
Search Warrant, supra. It also
argued that the 4th Amendment’s requirements “do not extend to such
instructions, so that violation of these instructions would not itself make the
search unconstitutional.” In re Search Warrant, supra.
The Supreme Court also noted that it was addressing a
judge’s authority to place ex ante conditions on how a search can be conducted
and would not address the propriety of the conditions imposed in this
case. In re Search Warrant, supra.
It also noted that it would rely only on the 4th Amendment,
rather than Article 11 of the Vermont Constitution – the state’s own search and seizure provision. In re Search Warrant, supra.
The court began its analysis by noting that “in creating the
instructions, the issuing judicial officer explicitly relied on the U.S. Court of Appeals for the 9th Circuit’s decision in U.S. v.
Comprehensive Drug Testing, Inc. (CDT I), 579 F.3d 989
(2009) (en banc).” As I explained
in an earlier post, that court originally “outlined a list of `guidance’ for
magistrates to employ when issuing warrants for search of electronic devices.” In re
Search Warrant, supra. The
government moved for rehearing en banc, which was granted and, on rehearing, “the
guidelines were removed from the per curiam opinion, and instead were included
in a concurrence.” In re Search Warrant, supra.
In my original post on the Comprehensive Drug Testing cases, and in a
follow-up post, I questioned the court’s ability to impose such conditions.
The Vermont Supreme Court found that while the permissibility of
imposing ex ante conditions “is a relatively novel question”, the issue of
which “tools are at the disposal of judicial officers in confronting the
challenges presented by searches of electronic media is a real and important
question.” In re Search Warrant, supra.
After considering the issues and the arguments on both sides, it
rejected the State’s
invitation to hold that all ex ante
restrictions on the execution of a search warrant are universally of no effect
in defining the constitutional requirement. Although the historical record is
sparse at this point, we see no bright line that allows some conditions, but
not ones that specify how law enforcement officials must conduct their search.
In re Search Warrant,
supra.
The court found that “ex ante instructions are sometimes
acceptable mechanisms for ensuring the particularity of a search.” In re Search Warrant, supra. It noted that in issuing a search warrant, a
judge must be concerned with whether there is probable cause for the search and
whether the warrant particularly describes the place to be searched and the
things to be seized. In re Search Warrant, supra. And it found that
ex ante instructions may be a way to
ensure particularity. Even in traditional contexts, a judicial officer may
restrict a search to only a portion of what was requested -- a room rather than
an entire house, or boxes with certain labels rather than an entire warehouse.
In other words, some ex ante constraints. . . are perfectly acceptable. Warrant
applications describing the proposed scope of a search are not submitted to the
court on a take it or leave it basis.
In re Search Warrant,
supra.
The Supreme Court noted that
[o]ften the way to specify particular
objects or spaces will not be by describing their physical coordinates but by
describing how to locate them. This is especially true in the world of
electronic information, where physical notions of particularity are
metaphorical at best. . . . Although the details of computer searches are new
and evolving, the need for a non-physical concept of particularity is one that
courts have already confronted.
Warrants for electronic surveillance
routinely set out `minimization’ requirements -- procedures for how and under
what conditions the electronic surveillance may be conducted -- in order to `afford[
] similar protections to those that are present in the use of conventional
warrants authorizing the seizure of tangible evidence.’ Berger v. NewYork, 388 U.S. 41 (1967). . . .
In re Search Warrant,
supra.
The court explained that minimization requirements included
in wiretapping warrants
are ex ante conditions on how a search
may be conducted, but we believe that they are well within the scope of a
judicial officer's role in ensuring that searches are targeted with sufficient
particularity. The same reasoning applies with even more force in the computer
context. In the digital universe, particular information is not accessed
through corridors and drawers, but through commands and queries.
As a result, in many cases, the only
feasible way to specify a particular `region’ of the computer will be by
specifying how to search. We view such ex ante specification as an acceptable
way to determine particularity.
In re Search Warrant,
supra.
The Supreme Court then outlined its holding and the
rationale for the result it reached:
What we ask judicial officers to ensure
. . . is not simply that there is a reason to believe evidence may be uncovered
but that there is a reason that will justify an intrusion on a citizen's
privacy interest. . . . It is therefore essential that a judicial officer be cognizant
of the general type of invasion being proposed. Where the invasion is less, a
judicial officer may be more willing to issue the warrant.
As a corollary, judicial officers may
describe in general terms what sort of an invasion is authorized. See U.S.
v. Banks, 540 U.S. 31 (2003) (“[A] magistrate judge is acting
within the Constitution to authorize a ‘no-knock’ entry.”). . . . To say this
is not to deny that the ex ante perspective of the issuing officer is to some
extent limited. Judicial officers should not micromanage the execution of the
warrant. . . . And because the ex ante assessment is general, it will not
foreclose ex post reassessment insofar as `the Magistrate could not have
anticipated in every particular the circumstances that would confront the
officers.’ Richards v. Wisconsin, 520
U.S. 385 (1997).
It is a serious error, however, to
infer from the fact that we must often evaluate ex post whether a search
sufficiently respected a citizen's privacy to the conclusion that we can make no
ex ante judgments about what sort of privacy invasions are and are not
warranted. There is interplay between probable cause, particularity, and
reasonableness that judicial officers reviewing a warrant application must
consider in authorizing a form of privacy invasion. We therefore reject any
blanket prohibition on ex ante search warrant instructions.
In re Search Warrant,
supra.
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