Second Circuit Discusses Application Of Plain-View Doctrine to Computers

Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...

The U.S. Court of Appeals for the Second Circuit June 25 offered guidance, for the first time, as to how courts applying the Fourth Amendment's exclusionary rule should deal with the fact that a search warrant for a computer will ordinarily authorize a search of all of its files (United States v. Galpin, 2d Cir., No. 11-4808-cr, 6/25/13).

The court ultimately remanded the case for further analysis and fact-finding on the admissibility of digital images of child pornography that were found by police officers who were executing a warrant that properly authorized a search of the computer only for other evidence.

The controversy in this case is just one of the divisive issues that have arisen as state and federal courts decide whether and how to apply to digital media Fourth Amendment search doctrines that were developed over the centuries in contexts involving more traditional types of “containers.”

Quoting United States v. Comprehensive Drug Testing Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc) (“C.D.T.”) (9 PVLR 1301, 9/20/10), the Second Circuit acknowledged that “there is currently no way to ascertain the content of a file without opening it” and because files containing evidence of a crime may be intermingled with millions of innocuous files, “'[b]y necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there.' ”

The court declined to require special protocols for searches of computers like those adopted by other courts. However, it did recognize a need for “heightened sensitivity” when applying the Fourth Amendment's particularity requirement in the context of a computer search.

'Heightened Sensitivity.'

Police in this case had obtained a search warrant for computers, cameras, and other belongings of the defendant, a convicted sex offender. The district court held that, although the warrant was overbroad to the extent it allowed a search for any violation of federal or state law, there were clauses in the warrant that described with sufficient particularity evidence related to the defendant's use of the internet to lure minors and failure to comply with a state law that required him to register an internet user name.

The district court in this case reasoned that, because the forensic examination of the defendant's computer required viewing every file to determine whether it contained data relevant to the valid portions of the warrant, the evidence of child pornography was in plain view and, therefore, admissible.

The Second Circuit rejected not only the conclusion that the luring-minors portion of the warrant was valid but also the district court's severance and plain-view analyses.

The appeals court decided that the existence of a valid provision of a warrant authorizing a search of a computer will not necessarily guarantee the admissibility of evidence found during the search:  

Once the government has obtained authorization to search the hard drive, the government may claim that the contents of every file it chose to open were in plain view and, therefore, admissible even if they implicate the defendant in a crime not contemplated by the warrant. There is, thus, “a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.” [C.D.T]. This threat demands a heightened sensitivity to the particularity requirement in the context of digital searches.




The court added that “[t]he potential for privacy violations occasioned by an unbridled, exploratory search of a hard drive is enormous. This threat is compounded by the nature of digital storage.” Limitations present with physical evidence “are largely absent in the digital realm, where the size or other outwardly visible characteristics of a file may disclose nothing about its content,” the court said.

Severability Analysis

The validity of the clause of the warrant authorizing a search for evidence of the registration violation, and the invalidity of the clauses authorizing the searches for evidence of luring and other offenses, presented the court with a severability issue. Although some other courts have declined to apply the severability doctrine to particularity violations, the Second Circuit allowed it.

The Second Circuit reiterated an admonition in a prior case that severance is not an available remedy for an overbroad warrant “where the sufficiently particularized portions make up only an insignificant or tangential part of the warrant.” Accordingly, the court remanded the case for the trial court to “weigh any particularized component(s) of the warrant against the invalid portions to determine whether the particularized portions were insignificant or tangential in relation to the search authorization as a whole.”

If the trial court on remand finds that the warrant was severable but that the evidence of child pornography was outside the properly authorized scope of the search, only then should it address the question of whether that evidence was in plain view in the course of the authorized search, the appeals court explained.

“However if, on remand, the district court finds that the warrant was not severable, then the 'initial intrusion' was unconstitutional--the entire hard drive search would have been without valid authorization--and the plain view doctrine could not be invoked to validate the use of any of the evidence the officers seized,” it said.

The court also left for the district court the issue of whether the evidence of child pornography would be admissible pursuant to the good-faith exception to the exclusionary rule.

James P. Egan, of the Federal Public Defender's Office, in Syracuse, N.Y., argued for the defendant. Paul D. Silver, of the U.S. Attorney's Office, in Albany, N.Y., argued for the government.

Full text of the court's opinion is available at