Last week CAAF granted review in an Air Force case presenting an interesting computer search issue:

No. 16-0727/AF. U.S. v. James W. Richards IV. CCA 38346. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE PANEL OF AFCCA THAT HEARD APPELLANT’S CASE WAS IMPROPERLY CONSTITUTED.

II. WHETHER THE 9 NOVEMBER 2011 SEARCH AUTHORIZATION WAS OVERBROAD IN FAILING TO LIMIT THE DATES OF THE COMMUNICATIONS BEING SEARCHED, AND IF SO, WHETHER THE ERROR WAS HARMLESS.

Briefs will be filed under Rule 25 on Issue II only.

The AFCCA’s decision is available here and reveals that:

The affidavit requesting search authorization for Appellant’s residence stated AFOSI was investigating “Florida Statute Section 847.0135 Computer Pornography; Traveling to meet a minor.” . . .

The military magistrate granted AFOSI’s request for authorization to conduct a search of Appellant’s residence to obtain “[a]ll electronic media and power cords for devices capable of transmitting or storing online communications.” AFOSI’s search of the residence resulted in the seizure of standalone computer hard drives, phones, thumb drives, floppy diskettes, and camera memory cards. . . .

At trial and on appeal, Appellant asserts that the search authorization was unconstitutional because it was overbroad in defining what could be seized. Appellant contends the Government only had information that Appellant had engaged in “online communications” with AP. Instead of using vague terms such as “electronic media,” he asserts the search authorization should have more particularly described types of electronics that could be used for such communications, such as laptop computers, smart phones, or gaming systems. Appellant also asserts that the manner in which AFOSI conducted the search and seizure reinforced the overbroad nature of the search authorization, as AFOSI indiscriminately seized multiple types of electronics that could not reasonably be expected to store such online communications. . . .

United States v. Richards, No. 38346, slip op. at 21-22 (A.F. Ct. Crim. App. May 2, 2016).

The AFCCA decided that the authorization was not overbroad, concluding:

While computer technology involves greater dangers of invasion of privacy and overreaching, computer searches are fundamentally no different than other searches involving commingled documents. When commingled records are searched, “it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.” Andersen v. Maryland, 427 U.S. 463, 482 n.111 (1976). In these types of searches, “responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.” Id. Investigators must be allowed a “brief perusal of documents in plain view in order to determine whether probable cause exists for their seizure under the warrant.” United States v. Heldt, 668 F.2d 1238, 1267 (D.C. Cir. 1981). Because computers and other electronic devices with internal digital storage have the capacity to store tremendous amounts of intermingled data, there may not be a practical substitute for briefly examining many, if not all, of the contents. United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009); United States v. Richards, 659 F.3d 527, 539–40 (6th Cir. 2011).“The general touchstone of reasonableness which governs Fourth Amendment analysis . . . governs the method of execution of the warrant.” United States v. Ramirez, 523 U.S. 65, 71 (1998).

Based on these legal principles, we find no constitutional overbreadth concern with either the terms of the search authorization or the manner in which the search was carried out.

Slip op. at 24-25.

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