Friday, July 17, 2009

Power Point and the Plain View Doctrine

The plain view doctrine is a 4th Amendment principle that lets an officer seize an item without first obtaining a search warrant, as long as the seizure comports with certain requirements. As Wikipedia explains, the requirements are that

The officer is lawfully present at the place from which he/she can plainly see the evidence;

The officer must be able to lawfully access the item to be seized; and

The incriminating character of the object must be `immediately apparent.’

Courts have found that the “immediately apparent” element means that the officer must have probable cause to believe the object is evidence of a crime. Probable cause exists when “the facts and circumstances within [the officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief’ that the object is evidence of a crime. Brinegar v. U.S. 338 U.S. 160, 175-176 (U.S. Supreme Court 1949).

In Texas v. Brown, 460 U.S. 730, 738-739 (1983), the U.S. Supreme Court said the plain view doctrine is best “understood . . .not as an independent `exception’ to the 4th Amendment’s warrant clause, but simply as an extension of whatever the prior justification for an officer's `access to an object may be.”

When I cover the plain view doctrine in class, I use this example to illustrate how it works: Officers are executing a warrant to search John Doe’s home for stolen TV sets. As they walk into the living room of the house – which could contain the stolen TV sets, not all of which have been found yet – they see a transparent bag lying on the coffee table. As the officers look at the bag, they see it contains what they immediately recognize – based on their training and professional experience – as illegal drugs (e.g., marijuana, crack cocaine). Their looking at the bag doesn’t violate the 4th Amendment because their search warrant authorizes them to be in Doe’s living room searching for the stolen TV sets. Since the illegal drugs are “in plain view,” looking at them is not a search under the 4th Amendment; as the Supreme Court said in Katz v. U.S., 389 U.S. 347 (1967), “whatever a person knowingly exposes to public view, even in their own home or office, is not private” under the 4th Amendment.

All the plain view doctrine does is to let the officers seize the drugs without first getting a warrant authorizing them to do so. As the Supreme Court noted in Texas v. Brown, it is

grounded on the recognition that when a police officer has observed an object in `plain view,’ the owner's remaining interests in the object are merely those of possession and ownership. . . . Likewise, it reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of . . . or incriminating evidence generally would be a `needless inconvenience’. . . that might involve danger to the police and public. . . . [O]ur decisions . . . reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately. . . .This rule merely reflects an application of the Fourth Amendment's central requirement of reasonableness to the law governing seizures of property.

And that brings me to U.S. v. Jefferson, 571 F.Supp.2d 696 (U.S. District Court for the Eastern District of Virginia 2008). The search at issue arose from the indictment that charged William J. Jefferson, a Member of the U.S. House of Representatives, with “a variety of crimes including bribery, conspiracy, wire fraud, foreign corrupt practices, money laundering, obstruction of justice and racketeering.” U.S. v. Jefferson, supra.

As part of the investigation. . . [FBI] agents . . . went to defendant's residence . . . in New Orleans . . . to execute a search warrant. . . . Schedule B to the search warrant listed items to be seized . . . in four general categories: (1) records and documents related to various corporate entities, (2) records and documents related to specific correspondence or communications between certain individuals, (3) records and documents related to travel to Ghana and/or Nigeria by certain individuals, and (4) records and documents related to appointments, visits, and telephone messages to or for defendant.

U.S. v. Jefferson, supra. By the end of the seven and a half-hour search, the agents had seized 1.400 pages of documents plus “high-resolution photographs of thirteen separate items” and notes of the contents of documents they neither seized nor photographed. U.S. v. Jefferson, supra. Jefferson only moved to suppress the photographs and the agents’ notes. The agents relied on the plain view doctrine as their justification for taking the photographs and making the notes; they said they were told to only seize evidence that was “directly responsive to the list of items” in Schedule B. They said they took the photographs and the notes “in an effort to comply with the prosecutors’ instructions while still giving effect to the plain view doctrine.” U.S. v. Jefferson, supra.

We’re only concerned with one of the thirteen items the seizure of which was apparently not “directly responsive” to the list of items in Schedule B:

The sixth item at issue is a power-point presentation regarding an enterprise known as E-Star. The warrant did not authorize seizure of documents or records relating to E-Star, and nothing else in the power-point presentation made it responsive to Schedule B. The government nevertheless contends that the power-point presentation was appropriately seized under the plain view doctrine.

U.S. v. Jefferson, supra. I’m not sure how the FBI agents “seized” the PowerPoint presentation. In its opinion the federal district court initially says they took photographs of some of the 13 items and took notes on the others. Later in the opinion, though, the court describes item #6 as “[a] printout of a power-point presentation entitled `E-Star Wireless Broadband Network Business Opportunity.’” U.S. v. Jefferson, supra.

It really doesn’t matter how they seized it. The point is that they seized the presentation, which wasn’t directly responsive to the list of items they were supposed to be searching for and seizing . . . so the only justification for seizing it was the plain view doctrine.

Jefferson argued that “all evidence seized in the search should be suppressed because the FBI agents' decision to photograph and take notes of documents that were not (in defendant's view) subject to seizure under the terms of the search warrant transformed the search into an impermissible general search of the sort prohibited by the Fourth Amendment.” U.S. v. Jefferson, supra. The federal district court judge did not agree:

Because the agents were lawfully in defendant's house and . . . were authorized to conduct a cursory inspection of documents they found to determine whether those documents were subject to seizure, the plain view analysis with regard to the power-point presentation . . . turns on whether its incriminating character was apparent on its face. Here, agents had probable cause to believe that the power-point presentation was evidence of a crime. The investigation into defendant's activities that had led to the search at issue focused on a number of schemes by which defendant had allegedly solicited payment in return for the performance of official acts. Agents Horner and Thibault testified that many of these alleged schemes involved telecommunications ventures. According to Agent Horner, the E-Star power-point presentation, which detailed a telecommunications venture, closely resembled similar presentations involving iGate, Inc. that had been provided to the FBI by cooperating witness Lori Mody. Because the agents were familiar with defendant's receipt of bribes in return for his performance of official acts on behalf of iGate, the similarity between the iGate venture and the venture described in the E-Star power-point presentation gave rise to a reasonable belief that the power-point presentation was evidence of another illegal scheme, and warrantless seizure of the power-point was appropriate under the plain view doctrine.

U.S. v. Jefferson, supra.

In a later portion of the opinion, the federal district court judge also rejected Jefferson’s argument that the agents “flagrant disregard for the terms of the warrant” transformed the search into a constitutionally impermissible general search, i.e., rummaging through everything without regard to whether it fell within the scope of the search warrant or an exception such as the plain view doctrine.

[T]he majority of evidence seized by way of photograph and written note during the . . . search was seized legally pursuant to the search warrant or the plain view doctrine. Only two items were improperly seized -- the 1991 calendar and appointment book and the Moss Creek documents. Nor does the record indicate that the improper seizures were a result of any flagrant disregard for the terms of the warrant; to the contrary, in each case there is evidence that the seizing agents acted in good faith. Because this was not a general search based on flagrant disregard for the terms of the warrant, blanket suppression is unwarranted.

U.S. v. Jefferson, supra.

I think the judge was correct in applying the plain view doctrine to the seizure of the PowerPoint presentation. What I find interesting about this case is the use of the plain view doctrine to seize this kind of intangible evidence. I haven’t run across any other plain view seizure of PowerPoint presentations, but I suspect this won’t be the last one we see.

Finally, I'd like to note that the judge and, apparently, the prosecution and defense lawyers in this case all assumed that by printing out the Power Point slides or photographing them (whatever the agents did to obtain the contents of the presentation) the agents "seized" the Power Point presentation. In my last post, I argued that copying data is a seizure under the 4th Amendment, notwithstanding the fact that one federal district court opined otherwise. Everyone involved in this case seems to have assumed that copying is, in fact, a 4th Amendment seizure.


Anonymous said...

Copying data is both search and seizure! Under your scenario, an officer could copy an entire hard drive and it would not be considered a search. Yet, what do you think the officer is going to do with the copy? If they truely intend to simply make a copy, but never look at its contents, this would not be a search, but an extremely bizarre seizure. What is the cop going to say in court? "See, this guy had data on his hard drive, he's clearly guilty. Who else keeps data on their hard drive but the guilty?" Sure, the cop has seized the data, but having data is not a criminal offense. It's the contents that can make it criminal. And the only way to establish the contents is look at, i.e. search them.

Too the same degree, how does an officer search, but not seize data later entered into evidence in court? She searches for specific files and makes note of what she finds, without actually copying the files. Yet, this would result in an absurd situation in which an officer was authorized to search for, but not seize, narrowly defined evidence of criminal activity. For example, the officer would be forced to testify that she found child pornography on the defendant's computer, but when asked to produce it, would have to say that the court must simply take her at her word without presenting any evidence. It's like saying "Your honor, we found 1000 kilos of crack, but we only looked at it. We didn't photograph it. We didn't seize it. We just made a note of it, arrested the defendant, and left the house never to return."

You write, "We could construe the act of copying the data as a search under at least two theories: One theory... is that the copying by the equipment is essentially the first step toward this officer’s viewing the contents of the hard drive, so it is the beginning of a search."

Isn't this the only logical way to construe copying data? Otherwise, the situation is the absurd ones that I described above. I am not a lawyer, so maybe I am missing the distinction you are making between the legal meaning of search and the legal meaning of seizure, but it seems to me that barring the absurd scenarios I described above, data cannot be either searched or seized, but must be both searched and seized if it is to be entered into evidence in court.

You argue that data can in fact be seized, but not searched, so I challenge you to give an example in which data that was seized, but not searched, could be used in a court case. How do you enter data, which you have never looked at, into evidence at a trial?

Susan Brenner said...

You argue that data can in fact be seized, but not searched, so I challenge you to give an example in which data that was seized, but not searched, could be used in a court case. How do you enter data, which you have never looked at, into evidence at a trial?

You don't because you obviously can't. My point is that the antecedent seizure -- which is how law enforcement acquires the data as a necessary first step toward looking at (searching) it and the consequences that follow from looking at it (such as using it in court) -- of the data is a 4th Amendment event which must be reasonable in and of itself.