U.S. v. Payton, No. 07-10567 (7-21-09). Searching the computer under a warrant to search for drugs was outside the scope, and thus child pornography evidence found on the computer must be suppressed. This is an important Fourth Amendment decision in that it recognizes that the search of a computer not expressly authorized is unreasonable. It also limits the pernicious reach of Giberson, 527 F.3d 882 (9th Cir., 2008). Here, the police got a warrant to search for drug sales because of neighbors complaints about sales (really just one neighbor complaining about drug use) and additional investigation. The warrant allowed search for drug sales as well as ledgers, pay sheets, financial records, bank accounts, and so forth, but nothing about computers. The probable cause affidavit had asked for a computer search, but as the state court judge testified, it never made it into the warrant despite the court's intention to so include it. The 9th (Canby joined by Wardlaw and Mills) reasoned that there was nothing to indicate that drug records might be secured on the computer. In Giberson, involving false identifications, there was evidence besides the computer that indicated false identification documents might be located within the computer. Giberson argued for a categorical bright line that a computer must be named in a warrant. Under Giberson's circumstances, with evidence by the computer, and a seizure of the computer, but no search until a second warrant was issued, the seizure and search were upheld. Here, though the 9th would not say that any computer could be searched under a warrant because it might contain evidence of ledgers, or payouts, or records. There has to be a tie of circumstances; this is exactly what the Fourth Amendment is designed to ensure. That allowed the computer search under a warrant. Thus, the search here was unreasonable (even with screen saver on), and Giberson has been limited to its special circumstances.

Congratulations to AFPD Eric Kersten of the E.D. Ca (Fresno).