Articles Posted in Search and Seizure

Check the warrant, or in the military the search authorization.

The recent decision of the Army Court of Criminal Appeals in a government appeal tells you why it’s important to check the warrant.

In United States v. Gurzynski, the court had before it a government appeal of a military judge’s decision to suppress evidence of a computer media search.

On 20 May 2016, the President, exercising his powers under UCMJ art. 36, signed an executive order amending the Manual for Courts-Martial.  Changes to the rules of evidence are included.  It was a change to Rule 311 that has draw significant attention and discussion among the UCMJ literati.  Basically, a military judge grants suppression when

“exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”

Mil. R. Evid. 311(a)(3) (2016).

How many times do we see the private search as an issue.  The upset spouse searches the computer to find evidence of infidelity, the Sailor’s friend or roommate comes across contraband CP on a computer and looks further, etc., etc., etc.

A responsible law enforcer would take the information to get a search warrant or command search authorization.  But that doesn’t always happen.  What does happen is that the law enforcer or someone in command goes and looks for themselves.  The question then becomes whether that is a search or is it a continuation of a private search.  If a private searcher shows the law enforcer exactly what they saw and that alone, there may not be an unlawful search.  But what happens if the law enforcer does more than strictly replicate what the private searcher did.  So Orin Kerr has some information for us in the Washington Post.

[T]he 11th Circuit handed down a new computer search decision,United States v. Johnson, that both sharpens and deepens the circuit split on how the private search doctrine of the Fourth Amendment applies to computers. Johnson isn’t a likely candidate for Supreme Court review. But it does leave the private search doctrine in computer searches ripe for Supreme Court review in other cases working their way through the courts.

Several relevant items for you this weekend.

Orin Kerr has this post at The Volokh Conspiracy. In part:

Computer searches usually happen in two stages. Agents take the computer, make a mirror image copy of its hard drive on a government storage device, and then search the image. Officers do this to ensure the integrity of the original data. Searching can alter the contents on the computer, so working from a copy preserves the original.

[D]istrict courts generally enjoy a fair amount of discretion in choosing the procedures they find most helpful for resolving pretrial motions, including whether to take the matter on the briefs, hear oral argument, or hold an evidentiary hearing. And often enough courts will choose to err on the side of granting more process than might be strictly necessary in order to ensure not only that justice is done but that justice is seen to be done. Whether because of intuition born of experience that a meritorious issue may lurk in an imperfectly drawn application, or simply out of a jealous wish to guard individual rights against governmental intrusions, judges sometimes allow a claimant a fuller hearing than the law demands. In a democratic legal order built on the promise of due process and the vindication of individual rights that’s often thought laudable or at least generally permissible — and in any event not the stuff of automatic reversal.

United States v. Herrera,  __ F.3d ___ (10th Cir. 2015).