Education & Training

Warrant Specificity in Search & Seizure of Computers

Articles | Books | Cases



Articles

Federal Judicial Center, Materials on Electronic Discovery: Search and Seizure of Computers and Data in Criminal Cases, www.fjc.gov (includes sample forms and orders).

G. Robert McLain, Jr., Note, United States v. Hill: A New Rule, But No Clarity for the Rules Governing Computer Searches and Seizures, 14 George Mason Law Review 1071 (Summer 2007).

Derek Regensburger, Bytes, Balco, and Barry Bonds: An Exploration of the Law Concerning the Search and Seizure of Computer Files and an Analysis of the Ninth Circuit's Decision in United States v. Comprehensive Drug Testing, Inc., 97 Journal of Criminal Law and Criminology 1151 (Summer 2007).

Wayne Jekot, Computer Forensics, Search Strategies, and the Particularity Requirement, 7 University of Pittsburgh Journal of Technology Law & Policy 2 (Spring 2007).

Thomas K. Clancy, The Fourth Amendment Aspects of Computer Searches and Seizures: A Perspective and a Primer, 75 Mississippi Law Journal 193 (Fall 2005).

David J. S. Ziff, Note, Fourth Amendment Limitations on the Execution of Computer Searches Conducted Pursuant to a Warrant, 105 Columbia Law Review 841 (Apr. 2005).

Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harvard Law Review 531 (Dec. 2005).

Orin S. Kerr, Search Warrants in an Era of Digital Evidence, 75 Mississippi Law Journal 85 (Fall 2005).

Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 Columbia Law Review 279 (Jan. 2005).

Particularity Requirement Calls for Practical Approach, 28 Law Officers' Bulletin, May 6, 2004, at 6.

Hon. Robert H. Bohn, Jr. & Lynn S. Muster, The Dawn of the Computer Age: How the Fourth Amendment Applies to Warrant Searches and Seizures of Electronically Stored Information, 8 Suffolk Journal of Trial and Appellate Advocacy 63 (2003).

Susan W. Brenner & Barbara A. Frederiksen, Computer Searches and Seizures: Some Unresolved Issues, 8 Michigan Telecommunications and Technology Law Review 39 (2001-2002).

Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harvard Journal of Law & Technology 75 (Fall 1994).


Books

Bill Nelson, Amelia Phillips, Frank Enfinger & Christopher Steuart, Guide to Computer Forensics and Investigations (3rd ed., Course Technology 2007).

Barbara J. Rothstein, Ronald J. Hedges & Elizabeth C. Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges (Federal Judicial Center 2007).

United States Department of Justice Computer Crime & Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (July 2002).


Cases

United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008). The 9th Circuit did "not discern a violation of the Fourth Amendment's requirements simply because the agents determined, upon the review and recommendation of a computer specialist, that certain intermingled files could not be feasibly sorted on-site."

United States v. Fleet Management Ltd., 521 F. Supp. 2d 436 (E.D. Pa. 2007). A search warrant authorizing seizure of all data from ship's computers was an invalid general warrant giving executing officers total discretion as to what they would seize.

United States v. Hill, 459 F.3d 966 (9th Cir. 2006). With respect to the search and seizure of "all" computers and files, the Ninth Circuit does not approve of issuing warrants to authorize blanket removal of computer storage media (hard drives) for later examination when there is no affidavit to specify the reason for the seizure and the purpose of the hard drive search.

United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005). Warrant to seize and examine defendant's computer, which did not specify any particular files or any specific federal crime, failed to satisfy the Fourth Amendment's particularity requirement. The warrant allowed the officers to search for anything, which the court held was the kind of wide-ranging exploratory search that the Framers intended to prohibit.

Arkansas Chronicle v. Easley, 321 F. Supp. 2d 776 (E.D. Va. 2004). Search warrant authorizing seizure of computer equipment and files was overbroad.

State v. Askham, 86 P.3d 1224 (Wash. App. 2004). A warrant was sufficiently particular when it named crime under investigation and specified the type of files to be searched that could have been used to conduct that criminal activity.

United States v. Wong, 334 F.3d 831 (9th Cir. 2003). A warrant that authorized the search of computer to “obtain data as it relates to this case” was sufficiently particular when combined with its list of particular writings sought in the house.

United States v. Triumph Capital Group, Inc., 211 F.R.D. 31 (D. Conn. 2002). The court held that a warrant seeking access to an attorney's laptop was sufficiently particular because it specified the nature of criminal activity and types of files to be seized.

United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). The court held that searching computer directories containing pornographic image files exceeded the scope of a warrant that specified searching a computer for evidence relating to drug transactions.

United States v. Longo, 70 F. Supp. 2d 225 (W.D.N.Y. 1999). A warrant was specific enough when it authorized a search of a hard drive and any data disks for “two documents, one a promissory note, entitled TGL-003, contained within the directory labeled MISC, and a purchase agreement entitled 911, contained in the directory entitled IMF.”

United States v. Kow, 58 F.3d 423 (9th Cir. 1995). The 9th Circuit held that a warrant for seizure of computers and files was deficient when it was not limited by time, location, and relationship to specifically described suspected criminal conduct.

Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995). The Supreme Court held that a search does not need to be conducted in the least intrusive manner. It ruled that regardless of the search protocols or keywords used by the government, the government may open and briefly examine every computer file to determine if it is within the description specified in the warrant.

State v. Nuckolls, 617 So. 2d 724 (Fla. App. 1993). A warrant seeking records of used car business charged with forgery, odometer tampering, and other criminal violations was sufficient when it authorized seizure of "data stored on computer, including, but not limited to, magnetic media or any other electronic form, hard disks, cassettes, diskettes, photo optical devices and file server magnetic backup tapes" because it left nothing to discretion of officers executing warrant.

United States v. Tamura, 694 F.2d 591 (9th Cir. 1992). The court held that the wholesale seizure for later examination of records not described in a warrant is considered intrusive and is supposed to be prevented by the Fourth Amendment. Tamura is not a computer file case, but is often cited in such cases for its principles.