OK Computer: How Long Can the Government Wait Before Starting a Search of Seized and Imaged Electronic Evidence?, 13 SCBJ, SC Lawyer, September 2013, #4

Author:Colin Miller
 
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OK Computer: How Long Can the Government Wait Before Starting a Search of Seized and Imaged Electronic Evidence?

Vol. 25 Issue 2 Pg. 26

South Carolina Bar Journal

September, 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Colin Miller

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Introduction

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This case raises an interesting issue of first impression in this Circuit that may impact electronic discovery in future criminal investigations and cases: How long may the government retain seized and imaged electronic evidence before conducting a review of that evidence to determine whether any of it falls outside the scope of a search warrant?1

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In United States v. Metter, the government indicted several individuals, including Michael Metter, alleging that these defendants fabricated 99 percent of the sales for Spongetech Delivery Systems, Inc. as part of a “pump and dump” scheme in which they artificially “pumped” Spongetech’s stock price and then “dumped” shares on duped investors.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In an effort to prove these allegations, the government executed search warrants covering Metter’s home and Spongetech’s office and seized hard drives from various computers at both locations. The government then created “images”—copies of hard drives duplicating every bit and byte, including metadata—and returned the original hard drives. Moreover, the government executed a search warrant that allowed it to (1) obtain files from the Internet Service Providers for the personal e-mail accounts of the defendants and (2) take a snapshot of account activity for a particular period of time. Approximately 15 months after executing these warrants, the government had not begun its review of whether any of the evidence that it had seized and copied was privileged and/or fell outside the scope of the relevant search warrant.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Metter moved to suppress the computer evidence based upon this delay, presenting to the Eastern District of New York an issue of first impression that courts across the country will soon need to confront. Many advances in technology have forced courts to reconsider existing constitutional tests and standards given the brave new digital world in which we live. Other technological advances have not caused such legal retrofitting, as courts have found that existing tests and standards can adequately accommodate some new innovations. This article argues that the problem confronted by the Metter court falls into this second category.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Bill of Rights in the 21st Century

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Enacted by Congress in 1789 and ratified by the states in 1791, the Fourth Amendment to the U.S. Constitution contains a mere 54 words:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.2

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Created in a world without cars, cameras or computers, the Fourth Amendment has understandably undergone some serious growing pains in the last several years. For centuries, the Supreme Court found no problem with law enforcement officers positioning themselves on a public street and conducting warrantless, naked eye surveillance of a citizen’s residence without obtaining a search warrant. Such surveillance could be as simple and fleeting as a “walk-by” or as lengthy and sustained as a stakeout in an unmarked vehicle for hours or days.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Kyllo v. United States, however, the Supreme Court confronted a situation in which law enforcement officers enhanced what the human eye can perceive by using a technological device.3 That device was a thermal imager, which allowed the officers to detect heat emanating from the defendant’s triplex that was consistent with the operation of high-intensity lamps typically used for indoor marijuana growth. Confronted with this new technology, the Kyllo Court dispensed with the traditional requirement that there must be a literal physical intrusion into a citizen’s home before officers need to secure a search warrant.4 Instead, traditional Fourth Amendment interpretation had to bend so that a search warrant is now required when law enforcement utilizes a sense-enhancing technology not in public use that allows officers to obtain information regarding the interior of a home that could not be detected through the five human senses. In other words, the Fourth Amendment must now account for an electronic sixth sense.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Moreover, many lower courts have confronted a question similar but distinct from the issue addressed by the Metter court: What is a reasonable amount of time for officers to complete a search of seized electronic evidence? In United States v. Hernandez, the FBI seized a computer and 26 floppy diskettes from the defendant’s home pursuant to a search warrant that expired on August 8, 2001.5 FBI agents thereafter found child pornography during (1) a search of the computer’s hard drive on July 31, 2001, and (2) a search of the floppy diskettes on September 13, 2001, after the warrant had been returned.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The defendant moved to suppress the evidence obtained from the search of the floppy diskettes. His motion likely would have succeeded if the September search were directed...

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