Computer Seizures and Searches: Rethinking the Applicability of the Plain View Doctrine
Volume 83, No. 4, Summer 2011
By James T. Stinsman

Over the past two decades our society’s dependence on computer technology has increased exponentially. With the advent of smart phones, computer tablets, and other portable electronic-storage devices, our society is rarely without access to computers and devices that can store electronic data. This increased dependency has also increased the frequency with which police seek information stored on computers pursuant to search warrants.

The Fourth Amendment generally requires that search warrants only be issued upon a showing of probable cause. Further, a warrant must particularly describe the place to be searched and the items to be seized. Courts have struggled to come to an understanding as to what this means when the objects of the search are a computer’s hard drive and files. In particular, problems have arisen in determining how specific the warrant must be in describing the items from the computer to be seized. Due to the sheer volume of data that exists on the average computer, courts have been reluctant to require investigators to specify exactly what folders on a computer’s hard drive they will be searching and exactly what type of files they are looking for. Another concern has been, and continues to be, whether the plain view doctrine permits police to seize data relating to crimes—other than those described in the warrant—if they come across such data while performing a search within the scope of the warrant.

In electronic data searches, the dichotomy between the particularity requirement and the plain view doctrine has sparked concern that such searches are becoming akin to the exploratory rummaging that the Framers of the Fourth Amendment sought to prevent. Commentators, along with the courts, have struggled with how to best balance the protection of privacy interests with law enforcement’s legitimate needs to conduct computer searches pursuant to criminal investigations. The two most notable proposed solutions are: (1) requiring investigators to provide ex ante search protocols—detailing the way in which they will conduct the search, and (2) limiting or eliminating the application of the plain view doctrine for electronic data searches. Both approaches, however, have been very slow to gain support among the courts.

This Comment explains how the proposed solutions clash with both Supreme Court precedent and the practical realities of our electronic-driven world. As an alternative, this Comment argues that it is not the category of electronic data searches that requires special treatment, but rather, the manner in which the searches are carried out. Specifically, whenever the normal two-step process of searching before seizing is reversed, and an over-broad seizure takes place before the search the plain view doctrine should not apply.

Part II reviews the Fourth Amendment requirements for obtaining and executing a valid search and seizure pursuant to a warrant. Part II.A provides an overview of Fourth Amendment warrant requirements for traditional searches of physical spaces and seizures of physical objects. Parts II.B.1 and II.B.2 set forth the current approaches taken by courts in applying Fourth Amendment warrant requirements to searches of electronic-data containers and seizures of electronic evidence. Part II.B.3 acknowledges the dilemmas raised by electronic data searches and discusses the solutions that commentators have proposed and courts have implemented.

Part III.A demonstrates that the current approaches suggested by commentators, and implemented by some courts, fail to strike a proper balance between protecting privacy interests and ensuring police the means to conduct effective criminal investigations. Part III.A also attempts to explain why most courts have not implemented the suggestions. Finally, Part III.B proposes eliminating the plain view doctrine, not only for electronic data searches, but for all situations that require an initial over-seizure to take place before the actual search occurs.

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