Wednesday, May 13, 2009

Evidence versus Contraband

This post was inspired by a question I got from someone whose computer, computer equipment and storage media were seized by police pursuant to a search warrant.

The police clearly had probable cause to obtain the search warrant and, we’ll assume, were within the scope of the warrant when they seized the computer equipment. So we’ll assume the seizure of the equipment was reasonable under the 4th Amendment.

As I’ve explained in earlier posts, the 4th Amendment creates a right to be free from unreasonable searches and seizures, which means that reasonable searches and seizures do not violate that amendment.

As I’ve also explained in earlier posts, the default way for a search and seizure to be reasonable under the 4th Amendment is for them to have been conducted pursuant to a warrant, which is what happened in the hypothetical case we’re going to analyze.
So there are no 4th Amendment problems with the police’s searching for and seizing the stuff that belonged to the person who asked me the question – John Doe, we’ll call him. And his question didn’t go to the propriety of the seizure of his computer equipment.

It went to a different issue entirely: The search warrant was based on probable cause to believe he had hacked a computer system and done some damage, maybe quite a bit of damage. John Doe said he had “pirated software, movies, music” on the computer, and he wanted to know if the police could keep that material or whether they would have to give it back. His question there was really a scope question; that is, it went to whether the police could lawfully seize – and keep -- this material since it had nothing to do with the hacking allegations that were the basis of the warrant. He also had another, related question: whether the police could use the pirated material they found on the computer to bring charges against him for copyright violations and other crimes.

I responded to John Doe directly, but I’m going to use this post to analyze the issues raised by his two questions. We’ll take them in order.

The first issue is whether the police could lawfully seized the pirated material they found on John Doe’s computer. As I explained in a post I did last year, in executing a search warrant police have to stay within the scope of the warrant; that is, they can only search things that could contain what they’re looking for (so if they’re looking for a stolen big screen TV, they can’t search dresser drawers) and they can only seize items that fall within the scope of the warrant (the big screen TV).

As I also explained, there is a rule – called the “plain view doctrine”—that lets police seize items that are not within the scope of the warrant as long as it is immediately apparent -- when they look at the items -- that they are either contraband or evidence of a crime. So if the officers executing a warrant to search for and seize evidence of hacking saw what they immediately recognized as a bag of cocaine sitting by the computer, they could seize the bag of cocaine; they couldn’t search for any more cocaine or other evidence of drug possession unless they got a search warrant that specifically authorized such a search.

In the Doe case, I’m assuming the circumstances were a little different. I’m assuming the officers executing the warrant seized Doe’s computer and later found the pirated material on it. The plain view doctrine applies when police officers are searching in a computer, as well as when they’re searching for a computer, as long as when they search the computer they stay within the scope of the warrant. In our hypothetical, that means they’d be examining the computer for evidence of hacking; so as long as they found the pirated material while they were searching for evidence of hacking, the plain view doctrine would apply.

What does that mean? It means that if the officer analyzing the hard drive of Doe’s computer saw the pirated material and immediately recognized it as what it was, the officer was legally authorized to seize the material, i.e., make a backup copy of it, say. The officer would not be authorized in searching for more pirated material under the plain view doctrine; he/she would have to get a new search warrant to do that. If, of course, more pirated material popped up as the officer continued to search the hard drive for evidence of hacking, then the plain view doctrine would apply to that material, as well.

Now we come to the question of whether, having lawfully seized the pirated material, the police can keep it or whether they have to return it to John Doe. Lawfully seizing the material means that the officer who found it had probable cause to believe it was either contraband or evidence of a crime. (The Supreme Court has said that the immediately recognized standard just means the officer had probable cause, as soon as he or she looked at the thing, to believe it was contraband or evidence of a crime.)

For the purposes of the 4th Amendment, it really doesn’t matter whether the material was contraband or evidence of a crime. Either works under the plain view doctrine. Whether the material is contraband or evidence of a crime does matter when it comes to deciding if the police can keep it forever or if they have to return it at some point.

To understand why it matters we need to define the terms. Contraband is “any property that is illegal for a person to acquire or possess under a statute, ordinance or rule”. Ohio Revised Code § 2901.01(13). Or as Black’s Law Dictionary says, contraband is “property whose possession is unlawful”. Cocaine and child pornography are both contraband; it is illegal to possess either one. No one, therefore, has the right to possess contraband, under any circumstances. (Police and court systems obviously possess contraband of varying types, but that’s not personal possession; it’s possession for law enforcement purposes, basically, and so is not illegal . . . at least not unless and until a police officer or a member of the court appropriates some of it for personal use).

Contraband is obviously evidence of a crime, but evidence of a crime is not necessarily contraband. All kinds of things can be evidence of a crime: John Doe’s computer, a gun, forged documents, a cell phone, etc. The evidence of a crime category is a residual category that captures items that can be used to convict someone of a crime but the possession of which is not illegal in and of itself.

If, as I assume, John Doe’s pirated material was contraband, then it will never be returned to him, just as child pornography is never returned to the person on whose computer it was found. If we assume, for the purposes of analysis, that it does not constitute contraband but is merely evidence of a crime, then it is possible for John Doe to get it back. As I explained in a post I did a couple of years ago, someone in his position can file a motion for return of property; such a motion asks the court to require the police to give back items they seized as evidence.

To prevail on such a motion, the person filing it has to show either of two things: One is that the property was improperly seized; so John Doe would have to show that the police had no justification for seizing his pirated material. That doesn’t sound likely. The other option is for the property owner to show that the court system and/or the police no longer need the items that were seized, and used, as evidence. In the earlier post, I talked about a case in which the owner of two computers did just this; he had already pled guilty and been sentenced, and asked the court to return the computers to his fiancĂ©. The government opposed the motion, arguing that the case wasn’t over because the guy seeking the return of the computers hadn’t exhausted his right to appeal the conviction or sentence or his right to seek relief in a habeas corpus action. As I recall, the man who owned the computers lost, which is pretty common. It’s difficult to get property seized as evidence of a crime returned to its original owner . . . which, of course, doesn’t mean that John Doe can’t try to get his pirated material back.

Before I quit I should say a few words about John Doe’s other question: whether the police could use the pirated material to bring charges against him for copyright or other crimes. As long as the pirated material was lawfully seized under the 4th Amendment (plain view doctrine, again), the government can use it to charge John Doe with these crimes even though they have nothing to do with the probable cause on which the search warrant was based. Analytically, the government’s seizure of John Doe’s computer equipment was lawful under the 4th Amendment because it was based on a valid search warrant; and the government’s seizure of the pirated material was valid (or so we’re assuming) because it was seized pursuant to the plain view doctrine.


samiamthelaw said...

Is there any difference here between the pirated material (contraband) and the computer? Could the original owner prevail by requesting the return of the computer minus any identified contraband files?

Susan Brenner said...

Good point. There's definitely a difference (if, of course, the computer isn't contraband itself).

The person can move to have the computer (and other hardware and software) returned if it's evidence. If the computer and other property are what the Supreme Court used to call "mere" evidence (not contraband) then the government has the right to retain them as long as it needs them for the criminal proceeding.

As I noted in the post, that would seem to mean the property could be returned when the person had been tried and acquitted or convicted. If the person was acquitted, there would seem to be absolutely no reason for the government to hold on to the computer, etc. If the person is convicted, then the case is not essentially over; he/she can still appeal, has to be sentenced and could bring a habeas action at some point.

Dorian Gray said...

1. At what point is the determination made if the item in question is deemed "contraband" or "evidence"?

2. Does the government have the right to retain possession of the item if no charges are filed?

Susan Brenner said...

I don't know that there's any formal point where the determination is made. I suspect it's pretty ad hoc: If officers find child pornography or cocaine, either is clearly contraband (as well as evidence).

The distinction is probably murkier in some instances, but, again, I suspect it's a pretty ad hoc, common sense process . . . which can always wind up in court if it's especially complex.

If the thing is contraband, the government will keep it because contraband is, by definition, something it's illegal to have. So even in the no doubt very unusual instance in which officers find child porn on someone's computer but no charges are brought, they're not getting the child porn back.

Dorian Gray said...


I appreciate your response. The examples you have sited are clearly contraband.

However, let us consider something more difficult - like "an employee personnel file" that was obtained through alledged "unauthorized access".

Simply possessing another employee's personnel file is not illegal, is it? It seems that would be "evidence" and not "contraband", correct?

Dorian Gray said...

And currently, based on FBI's standard operating procedures on electronic "contraband" removal, even if the property (hard-drive) is returned, the FBI forensically "scrubs" the entire hard-drive to remove all files and content - rather they are truly "contraband", "evidence" or otherwise.

This seems like a potential 4th ammendment violation, especially when no charges are pending.

Basically, it gives the FBI the power to seize computer equipment, make unchallenged determinations on "contraband" or "evidence" content, and format an entire hard-drive prior to its return.

Additionally, there is the subtle threat that challenging the FBI (and asserting 4th ammendment rights) will result in formal charges being filed that would otherwised not be pursued.

This is very scary indeed.

David Schalk said...

I am a criminal defense attorney. I tried to divert some marijuana from a confidential informant to the police and court for use as evidence that the informant was actively dealing drugs while doing favors for the police. It was one week before my client's A-Felony trial. The informant eventually did time for dealing cocaine but as the trial approached, he was being protected by the police.
I was convicted of attempted possession of marijuana although everyone agreed I did not want to handle the contraband. My appellate brief is due in three weeks. I plan to say that Indiana needs a public authority law that includes defense attorneys in possession of contraband for use as evidence.
Now I see that judges, prosecutors, police officers, and confidential informants don't exactly possess contraband they control during investigations and judicial proceedings. This is a case of first impression in Indiana. Do you think I should say I want the state legislature to eventually create a public authority defense that includes criminal defense lawyers? I am going to point out that judges, prosecutors, police officers, and confidential informants routinely break the letter of the law and their only possible defense is legislative intent. I think any impugned legislative intent should include the intent to allow criminal defense attorneys to violate laws prohibiting the possession of contraband when the contraband is possessed solely for use as evidence.
The record and transcript are at An outline of my brief is there too. An amicus brief would help me get a well-reasoned, principled decision from the Indiana Court of Appeals. Some advice might help too.