Monday, January 07, 2013

Judicial Authority to Attach Ex Ante Conditions to a Search Warrant

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 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. 

No comments: