Case o' The Week: Unauthorized Search Does Not Compute - Payton, the Fourth Amendment and Computer Searches

We've often bemoaned the irony that the Ninth Circuit is home to so many cutting-edge technologies, yet the Ninth's Fourth Amendment jurisprudence on cyber searches lags years (or decades, or centuries) behind. See, e.g., Giberson blog here.

Happily, this week Judge William Canby (above, back row, second from right) gets the Ninth back on track in an admirable new Fourth Amendment decision on computer searches, United States v. Payton,__ F.3d __, No. 07-10567, 2009 WL 2151348 (9th Cir. July 21, 2009), decision available here.

Players: Great win by ED Cal AFPD Eric Kersten. Decision by Judge Canby, joined by Judge Wardlaw.

Facts: Cops believed the residents of Payton’s home were selling drugs, and got a search warrant. Id. at *1. The warrant permitted a search for pay/owe ledgers and financial records, but did not explicitly authorize the search of computers. Id. The search revealed no evidence of drug sales. Id. A cop did, however, find a computer with an active screen saver. Id.

By moving the computer’s mouse the cop stopped the screen saver; he then clicked on a file icon and opened it. Id. That file was an image that ultimately lead to a federal child porn prosecution. When the district court denied a suppression motion Payton pleaded guilty pursuant to a conditional plea.

Issue(s): “The search warrant did explicitly authorize a search of Payton’s premises to find and seize, among other things, ‘sales ledgers showing narcotics transactions such as pay/owe sheets,’ and ‘financial records of the person(s) in control of the premises.’ The crucial question is whether these provisions authorized the officers to look for such records on Payton’s computer.” Id. at *3.

Held: “We conclude that, under our recent and controlling precedent of . . .Giberson . . ., as applied to the circumstances of this case, they did not.” Id.

“[T]he search of Payton’s computer exceeded the scope of the warrant and did not meet the Fourth Amendment standard of reasonableness. There is no question that computers are capable of storing immense amounts of information and often contain a great deal of private information. Searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers. Such considerations commonly support the need specifically to authorize the search of computers in a search warrant, as Officer Horn requested in the present case. Despite his request, the warrant did not explicitly authorize the search of Payton’s computer, and it incorporated Officer Horn’s affidavit only to support probable cause, not to describe the objects to be searched or searched for. The after-the-fact testimony of the issuing judge that he intended expressly to authorize the search of computers could not cure the failure of the warrant to authorize the search of computers. . . .” Id. at *2.

Of Note: We weren’t big fans of the 2008 Giberson decision on warrantless computer searches. See blog here. Payton, fortunately, helps bring the Ninth’s computer-search law back on par with the technological sophistication of this Circuit. In a particularly thoughtful decision, Judge Canby so thoroughly limits Giberson to its facts that the ‘08 opinion is now just an unfortunate Fourth footnote.

Payton provides three core principles that will resonate in future search cases. The first is the holding, quoted above, that computer searches reveal so much information, and such private information, that a reasonable computer search will often require specific authorization in a warrant. Id. at *2.

The second key holding is that computers are not always mere “containers” that can be searched if any evidence sought in the search warrant could be found within. A computer’s “bare capability” to contain evidence sought in a warrant is not – alone – sufficient to permit a search of a computer as a “container”(like a briefcase). Id. at *3.

The third principle is a pretty clear endorsement of judge-imposed “limiting protocols” in search warrants for computers. Id. at *5. (Note that the magistrates of the Northern District of California have created a protocol for computer searches that is required -- or rather, strongly encouraged -- for all federal search warrants in this district. This laudable approach gets a solid nod from the Ninth in Payton, and deserves to be emulated in other districts and in state courts. To get a copy of this protocol from an executed search warrant, contact the ND Cal FPD.)

How to Use: Payton’s core concept is that computers are not mere “containers” that can be reasonably searched without specific authorization in a warrant. Of course, there's an important caveat: if there are other “legitimating facts” suggesting that evidence may be within the computer a warrantless seizure may be “reasonable” – that’s Giberson (fake printed I.D.s laying around a computer). But Giberson should be the exception for computer searches, not the rule.

Payton’s important rule limiting the "container" search theory should be pushed in other contexts, like smartphone and pager searches.

For Further Reading: DOJ has many policies in place for the search of computers: its manuals can be found here.

Image of Hon. William Canby from http://www.law.asu.edu/?id=32

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd

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