What the founders did not see coming: the fourth amendment, digital evidence, and the plain view doctrine.

• Author: O'Leary, Kaitlyn R.

"The shift from physical evidence to digital evidence often leads to a shift in how investigators collect evidence; changes in how evidence is collected leads to pressure for new legal rules to regulate evidence collection. The warrant process is merely one part of a broader mosaic of the mechanisms of the investigative process that will be reformed." (1)

1. Introduction

   The development of digital technology has created a unique set of problems for courts attempting to determine whether certain practices pertaining to search and seizure of digital forensic evidence are violative of the Fourth Amendment. (2) The significant inherent differences between physical and digital property make a traditional application of the Fourth Amendment ill-fitting and unworkable. (3) Congress and the courts have attempted to grapple with the doctrinal inconsistencies that result from the physical-digital distinction by recognizing modifications in the practices, policies, and procedures that govern the search and seizure of digital evidence. (4) In the absence of well-defined rules, however, courts are implementing widely varied and inconsistent approaches to determine whether the government violated the timing and particularity requirements of search warrants under the Fourth Amendment. (5)

   In 2009, Congress codified one doctrinal modification by amending Rule 41 of the Federal Rules of Criminal Procedure to permit the government to investigate the contents of media seized after the physical execution of the warrant. (6) Prior to its amendment, Rule 41(e)(2)(A)(i) required that a warrant be executed within a specified period no longer than fourteen days from the date of issuance, as determined by a magistrate. (7) This rule created confusion among the courts concerning whether the execution deadline pertained only to physical evidence, or whether the forensic examination had to be conducted within that timeframe as well. (8) By amending the rule, Congress recognized that applying the standards of a physical search and seizure to a digital search and seizure is unreasonable and unworkable. (9) Despite this recognition, Congress provided no guidance as to the appropriate end date by which forensic examiners must conduct their search, which has resulted in disparate decisions by the courts. (10)

   Additionally, the Advisory Committee Notes on the 2009 amendments to Rule 41(e)(2) indicate that Congress intentionally refused to address the particularity with which one must describe the digital evidence sought in the warrant and left the issue to be settled by the courts. (11) Without a rule specifying the degree of particularity required to obtain a warrant, the courts have struggled to reconcile the plain view doctrine in the digital context where the forensic examiner discovers previously unknown, incriminating evidence that was not particularized in the warrant, and for which there was no probable cause to seize. (12) Under the traditional application of the plain view doctrine to physical property, evidence can be seized and used to prosecute the defendant so long as it is clearly located in plain view and the investigator had lawful right of access to it. (13) For example, if the examiner finds incriminating evidence in the process of opening files, the plain view doctrine holds that the evidence could potentially be lawfully seized, regardless of its relation to the original warrant. (14) Absent guidance from Congress or the Supreme Court, it is unclear what degree of particularity is required for executing a warrant. (15) As a result, the circuit courts are split as to how, and in what capacity, the plain view doctrine should be applied to digital evidence. (16)

   This Note will analyze the timing and particularity issues left unresolved by Congress's 2009 amendment to Rule 41. (17) Part II.A will provide a history of the case law, highlighting the ambiguity surrounding the timeline requirements of Rule 41(e)(2)(B). (18) Part II.B will discuss how the lack of a particularity rule has forced the courts to confront the plain view doctrine's application to digital evidence. (19) Part II.B will also examine the approaches that various circuit courts have taken to address this issue. (20) Part III will analyze the cases outlined in Parts II.A and II.B, as well as the various approaches courts have taken to address timing and the plain view doctrine's application to digital evidence. (21) In addition, Part III will discuss how Congress's failure to resolve these issues in its 2009 amendment is problematic for both defendants and examiners, as well as for judicial efficacy and the interests of justice. (22) Finally, this Note will propose amending Rule 41 to better serve defendants, examiners, and the judicial process. (23)

2. History

   1. The Road to the Amendment

      1. Pre-2009 Amendment

         In 2009, Congress amended the Federal Rules of Criminal Procedure in an effort to clarify Rule 41(e), which governs the procedure for issuing a search warrant. (24) Prior to the amendment, Rule 41 stated that a search warrant must be executed within a specified period of time, no longer than ten days. (25) Attempts by magistrates to authorize warrants for digital evidence under this rubric exposed inconsistencies between the search and seizure procedures of traditional physical evidence and digital evidence. (26) Specifically, the search and seizure of digital evidence requires that the police take an additional step when executing the warrant: Once they have lawfully searched the premises and seized the evidence specified in the warrant, they must subsequently search the seized evidence for indicia of the criminal activity that supported authorization for the warrant. (27) While the time limit prescribed by the unamended rules provided a reasonable balance between police exigencies and an accused's privacy concerns with regard to search and seizure of physical property, search and seizure of digital evidence required a different analysis of reasonableness given concerns arising out of digital searches. (28)

         Various court decisions attempting to apply Rule 41 to digital evidence exposed such inconsistencies where police were unable to execute the warrant within the ten-day limit prescribed by the rule. (29) Absent bright-line guidance, the courts employed various methods of distinguishing the facts of each case and rarely declared a search unreasonable despite its not being executed within the ten-day requirement. (30) In one such case, United States v. Syphers, the court indicated that a warrant extending the time limit for execution may be overbroad, yet still reasonable, as long as the delay does not unduly prejudice the defendant. (31) In United States v. Triumph Capital Group, the court applied the Federal Rules, but minimized the weight of their application, stating that "[t]he requirements of Rule 41 are basically ministerial in nature and violations of the rule only require suppression where the defendant is legally prejudiced." (32) Deviating even further from the ten-day requirement in Rule 41, the court in United States v. Hernandez found that the Federal Rules of Criminal Procedure do not supply a specific time limit in which a computer must undergo forensic examination; rather, if the police seize the data authorized by the search warrant in the time frame established by the magistrate, the actual examination of the data may take a substantial, unspecified period of time. (33) Conversely, the court in State v. Zinck applied the reasoning in Hernandez, but distinguished it by determining that the extensive time delay was unreasonable and violated the defendant's Fourth Amendment rights. (34)

      2. Rule 41(e) Amended

         Given the ambiguity resulting from the time limit component of Rule 41(e)(2)(a) and its application to computer searches, Congress amended the rule to specifically exclude computer and electronic media searches from the ten-day deadline. (35) The comment to the amendment suggests that the revised rule is designed to account for unique differences between physical and digital evidence. (36) Noting that computers and other electronic-storage media often contain enormous amounts of information, making it impractical for law enforcement to search and review it all during the execution of the warrant at the search location, the comment reflects that digital searches occur in a two-step process. (37) Additionally, rather than try to delineate a specific time period in which a computer search must be executed, Congress acknowledged "the practical reality is that there is no basis for a 'one size fits all' presumptive period," and prescribed a fourteen-day period for the actual execution of the warrant and onsite activity, but left the time allotted for search of the digital media unspecified. (38) As such, the statutory rules only regulate the timing of the government's physical search of the premises specified in the warrant, but do not regulate the timing of the digital-search stage. (39)

         Although the amendment to Rule 41 clarified the extent to which the execution deadline applied to digital searches, it also created a new point of ambiguity for the courts to grapple with: What, if any, limitation exists on the timing of the digital-search stage of the computer warrant? (40) In omitting a time frame for the completion of digital searches, the Federal Rules provide very little guidance to the magistrates issuing the warrants, the law enforcement agents conducting the searches, and the judges determining whether evidence derived from the searches should be admitted or suppressed. (41) This ambiguity has resulted in a lack of cohesion amongst the courts in how to address the temporal scope of electronic searches. (42)

         In some instances, courts have indicated that the Fourth Amendment--although lacking an explicit deadline--may be the source of restriction governing the timing of digital searches. (43) For example, in United...