In United States v. Cote, No. 12-0522/AF (CAAFlog case page), CAAF reviewed a trial judge’s order suppressing the results of a search of a computer hard drive seized pursuant to a warrant issued by a federal magistrate judge. The warrant contained an express 90-day time limit for any search (with the ability to request an extension). But the search occurred long after that time period expired. A divided court found that: “The military judge did not abuse her discretion in suppressing the evidence found on the WD external drive.” United States v. Cote, 72 M.J. 41, 46, slip op. at 13-14 (C.A.A.F. 2012).

In my argument preview of Cote, I noted that GW Law professor Orin Kerr, who blogs at The Volokh Conspiracy, follows developments in the area of ex ante restrictions on computer search warrants. Continuing this trend, Prof Kerr takes note of the Cote opinion, and takes issue with the majority’s approach:

I think the majority was wrong and Judge Ryan was right. First, Judge Ryan is right that the court was not applying the Fourth Amendment, at least in any form I recognize. The relevant Supreme Court precedent is Richard v. Wisconsin, 520 U.S. 385 (1997), in which the magistrate crossed out by hand the part of the warrant application that had allowed the government to execute a warrant at a hotel room without first knocking and announcing their presence. When the police went to execute the warrant, they searched without first knocking and announcing. On review, the United Staes Supreme Court concluded that the magistrate’s ‘decision’ that the officers had to knock and announce was completely irrelevant under the Fourth Amendment. The relevant question was the reasonableness of not knocking and announcing, which was not a question that the magistrate had authority to answer:

In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the magistrate who signed the search warrant for his hotel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the hotel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the magistrate, to justify a no knock warrant. Of course, the magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards’ hotel room. [n.7] These actual circumstances–petitioner’s apparent recognition of the officers combined with the easily disposable nature of the drugs–justified the officers’ ultimate decision to enter without first announcing their presence and authority.

I see the magistrate’s hand-written 90-day limitation in Cote as analogous to the hand-crossed-out knock-and-announce limitation in Richards. In both cases, the magistrate cannot make a “ruling” about what Fourth Amendment reasonableness is going to require in some future that the magistrate does not know. Reasonableness must be judge ex post, at the time the events occurred, not ex ante, at the time the warrant is signed. As a result, the magistrate’s ex ante limitation is irrelevant to the reasonableness of the resulting search under Richards.

I’m in no position to argue with Prof Kerr’s analysis on the Fourth Amendment question, but I do wonder about the significance of the standard of review used by CAAF. As I noted in my opinion analysis, the trial judge initially suppressed the results of the search because of the violation of the term of the warrant, but then:

The Government appealed, the AFCCA reversed, and CAAF declined to consider the case. Trial resumed, the Appellant was acquitted, by a general court-martial composed of members, of all charges except a charge of possession of sexually explicit visual depictions of minors that was based solely on the evidence found on the WD external drive. He was sentenced to confinement for twelve months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The AFCCA affirmed (almost two years post trial). CAAF then granted review to determine:

Whether evidence found on Appellant’s computer should be suppressed because it was found pursuant to a search that violated the terms of the warrant.

Early in his majority opinion, Judge Erdmann notes that “On direct review of an issue which was previously the subject of an Article 62, UCMJ, interlocutory appeal, we review whether the military judge’s initial decision was an abuse of discretion.” Slip op. at 7 N.4. This is an interesting twist in the case, as CAAF is reviewing the action that ultimately didn’t happen, and providing the military judge with a very late reason to say “I told you so” to the CCA.

“We review a military judge’s ruling on a motion to suppress for abuse of discretion. We review findings of fact under the clearly erroneous standard and conclusions of law de novo.” Cote, 72 M.J. at 44, slip op. at 7 (citations omitted). This is a deferential standard, and I think there’s a lot to be said about the fact that CAAF reviewed the suppression of the evidence for an abuse of discretion, as opposed to reviewing the admission of the evidence for an abuse of discretion (more commonly the case when reviewing a conviction). The procedural history of this case (suppression, successful government appeal to the CCA, denial of review by CAAF, admission of the evidence, conviction at trial, affirmance by the CCA, CAAF grant) distinguishes it from virtually all other cases CAAF normally reviews.

So, considering Prof Kerr’s analysis, Judge Ryan’s dissent might be prophetic.

Case Links:
AFCCA Article 62 (interlocutory) opinion
AFCCA Article 66 (merits) opinion
Appellant’s Brief
Appellee’s (Government) Brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis
Blog post: Some outside scrutiny of CAAF’s opinion in Cote

3 Responses to “Some outside scrutiny of CAAF’s opinion in Cote”

  1. stewie says:

    I guess the question becomes how long is too long before you can’t honestly say that there is probable cause that the thing to be searched is where you are searching?  Isn’t that the reason for the time cut-off?  If you wait months and months, then hasn’t the argument that the thing you are looking for is where you are looking stale?
    That seems right in the ol’ 4th Amendment wheelhouse to me.

  2. TC says:

    But that question doesn’t apply when the thing to be searched has been seized, and therefore preserved, like the hard drive in this case.

  3. stewie says:

    My bad, I did miss that part, so then my next question is still the same, how long is too long? Can the government keep that item indefinitely and search it at their leisure?  At some point in time (1 year, 5 years, 10 years) does it not become an unresonable seizure?