PLAIN VIEW Priscilla M. Grantham GENERAL PRINCIPLES: If in the course of a lawful search, police see items that are incriminating or have evidentiary value, under the plain view doctrine they may be able to seize the items even if there was no prior authority to do so. The Court in Horton v. California 1 announced the conditions which must be satisfied in order to uphold a seizure under the plain view doctrine: (1) the item must be in plain view of the officer; (2) the officer must lawfully be in the place where he discovered the evidence; and (3) the incriminating nature of the evidence must be immediately apparent. 2 If an officer has a right to be in the position from which an object can be seen in plain view, the object is admissible as evidence. 3 This is true whether the officer is there pursuant to a search warrant, consent 4, or the existence of exigent circumstances. 5 The immediately apparent requirement mandates that there be a nexus between the viewed object and illegality before the police can seize the object, 6 thus preventing the sanctioned search from turning into a general exploratory quest for incriminating material. A police may rely on his expertise and experience to determine that an object is incriminating. 7 Generally, the more effort the police use to discover the additionally incriminating evidence, the less likely it is that the immediately apparent requirement will be met. In Arizona v. Hicks 8, the Court held that before seizing items in plain view, the police must have, at a minimum, probable cause to believe 1 Horton v. California, 496 U.S. 128 (1990). 2 Id. 496 U.S. at 136-37. 3 State v. Venzen, 649 S.E.2d 851 (Ga. App. 2007). 4 United States v. Tanksley, 50 M.J. 609, 620 (N-M Ct. Crim. App. 1999). 5 See, Venzen, 649 S.E.2d at 853-54 (exigent circumstances existed for officers to seize contraband without search warrant when they were at location to serve arrest warrant and defendant opened door holding marijuana cigarette; if officers retreated to obtain search warrant, the contraband would have likely been destroyed); State v. Eady, 733 A.2d 112 (Conn. 1999) (incriminating evidence observed during warrantless entry into residence to extinguish a fire is admissible). 6 Texas v. Brown, 460 U.S. 730, 741-42 (1983). 7 Id. at 742-43. 8 Arizona v. Hicks, 480 U.S. 321 (1987). 1
the item is contraband or evidence of criminality. 9 In Hicks, the police entered an apartment after a shot was fired from within. While in the apartment, the police saw stereo equipment they suspected was stolen and therefore moved the components in order to find and record the serial numbers. 10 The Court found that moving the equipment constituted a search, separate from the search for the shooter, victims and weapons that predicated the officer s entry into the apartment. 11 A mere inspection of the equipment would not have constituted a search in that it would not have been an additional invasion of the respondent s privacy interest. 12 Turning to the question as to whether the search was reasonable, the Court began with the finding that the plain view doctrine which allows, under certain circumstances, police to seize evidence in plain view without a warrant, can apply to a search as well. 13 Therefore, the separate search would be valid as long as the plain view doctrine would have sustained a seizure of the stereo equipment. 14 The Court held that since the officer did not have probable cause to believe the stereo equipment was stolen, the plain view doctrine was not applicable. 15 Likewise, in People v. Blair, 16 the court held that the seizure of defendant s computer was not justified under the plain view doctrine; discovery by police of bookmarks with references to teenagers might constitute reasonable suspicion that the computer contained child pornography, 17 but did not rise to the requisite level of probable cause. 18 Must discovery be inadvertent? While noting that inadvertence was a characteristic of most legitimate plain view seizures, the Court in Horton v. California 19 stated it was not a necessary requirement, 20 reasoning that an inquiry as to whether a discovery is inadvertent focuses on the subjective state of mind rather than the objective standard under the totality of circumstances analysis. 21 Nevertheless, some courts still address the 9 Id. at 326. 10 Arizona v. Hicks, 480 U.S. at 323. 11 Id.at 324-25. 12 Id.at 325. 13 Id. at 326. 14 Id. 15 Id. 16 People v. Blair, 748 N.E.2d 318 (Ill. App. 2001). 17 Id. at 323. 18 Id. 19 Horton v. California, 496 U.S. 128. 20 Horton, 496 U.S at 130. 21 Id. at 138. 2
issue of inadvertence in determining the propriety of seizures under the plain view doctrine. 22 In United States v. Carey, 23 the Tenth Circuit seemed to read a requirement of inadvertence into the plain view doctrine. 24 In Cary, the police was searching defendant s computer for evidence of drug trafficking and noticed several JPG files with sexually explicit file names. 25 He opened one of the JPG files and upon discovering child pornography, downloaded approximately 244 additional JPG files, transferred the files to disks and proceeded to view the contents of 95 to 133 files. 26 After doing so, the police resumed his search for evidence of drug trafficking. 27 Relying on the officer s testimony that each time he opened an additional JPG file he expected to find child pornography, the court reasoned that the contents of these files were not inadvertently discovered, and therefore not admissible under the plain view doctrine. 28 By opening the additional JPG files that he believed would contain child pornography, the court stated that the detective had in effect abandoned his search for drug-related documents. 29 PLAIN VIEW AND COMPUTERS A. Images or Information on the Computer Screen If police are lawfully in a place and see an image or document on a computer screen and its incriminating nature is immediately apparent, their observations will be considered in plain view and the evidence may be seized under the plain view doctrine. 30 If, for example, police are conducting a lawful search under a warrant for evidence of a crime and see an image of child pornography on the computer screen, the image will be admissible under the plain view doctrine. In State v. Mays 31 police were lawfully in defendant s home to investigate the claim made by the victim that defendant had beaten him. 32 The defendant invited the officers in, and in the course of looking for signs of a struggle, police saw the message [H]e will die today on the computer screen. 33 The court held that the 22 United States v. Carey, 172 F.3d 1268, 1273, n.4 (10 th Cir. 1999); United States v. Gray, 78 F. Supp. 2d 524, 529 (E.D. Va. 1999). 23 Carey, 172 F.3d 1268. 24 Id. at 1273. 25 Id. at 1270. 26 Carey, 172 F.3d 1271. 27 Id. 28 Id. at 1273. 29 Id. 30 Tanksley, 50 M.J. at 620 (observation of information on computer screen in plain view thus justifying seizure of diskette containing it from the computer). 31 State v. Mays, 829 N.E.2d 773 (Ohio Ct. App. 2005). 32 Id. at 777. 33 Id. at 779. 3
warrantless seizure of the computer was justified under the plain view doctrine, as the message was clearly indicative of criminal activity. 34 B. Images or Information in Computer Files The question as to what constitutes plain view in the context of computer files is an issue that has not been resolved by the courts. The determination rests largely on how the court views computers and searches of computers. Many courts view computers as containers capable of storing information (albeit in digital form) just as a filing cabinet stores paper records and documents. 35 Courts adopting the computer as container approach view data in a computer as simply another form of document; therefore, a search warrant for writings or records encompasses a search of computer files. 36 If a search for computer data is merely a document search, police are bound by the same rules whether the information is in a computer, a desk, or a filing cabinet. Other courts reject the filing cabinet analogy, finding that it is too simplistic in light of the variety and vast quantity of information that is stored in computers; 37 therefore law enforcement must take a special approach when searching for data on a computer. 38 That is, while police might have some degree of suspicion that something they see in the course of a lawful search is contraband or evidence of criminality, they may not do anything that constitutes a new search to gain the requisite probable cause. 39 1. Special Approach: United States v. Carey, 172 F.3d 1268 (10 th Cir. 1999). The Tenth Circuit in United States v. Carey, 40 asserted that the file cabinet analogy may be inadequate due to the massive quantity and variety of information that can be stored in computers. 41 The Carey court said that when searching computers officers should employ special methods, such as searching according to the file types or titles 34 Id. 35 United States v. Al-Marri, 230 F. Supp. 2d 535, 541 (S.D.N.Y. 2002). 36 See, United States v. Hunter, 13 F. Supp. 2d 574, 581 (D. Vt. 1998); United States v. Musson, 650 F. Supp. 525, 531 (D. Colo. 1986); Frasier v. State, 794 N.E.2d 449, 454, 460 (Ind. Ct. App. 2003). 37 Carey, 172 F.3d at 1275. 38 Id. at 1275 n.7. 39 See, e.g., Arizona v. Hicks, 321 U.S. at 325; United States v. Osorio, 66 M.J. 632 (A.F. Ct. Crim. App. 2008); People v. Blair, 748 N.E.2d 318 (Ill. App. 2001). 40 Carey, 172 F.3d 1268 (10 th Cir. 1999). 41 Id. at 1275. 4
listed in the directory, to avoid searching files not of the type specified in the warrant. 42 Furthermore, when police come across intermingled documents, they must engage in the intermediate step of sorting the documents and searching only those specified in the warrant. 43 In Carey, an investigator was searching a computer pursuant to a warrant to search for records of drug distribution when he came across an image that appeared to be child pornography. The detective continued to open additional JPG files in order to confirm that they contained child pornography. The court found that the first image of child pornography was admissible under the plain view doctrine 44 because the investigator had to open the file and examine the contents to determine what the file contained. 45 By opening the additional JPG files in which he expected to find child pornography, the detective abandoned his original authorized search for evidence of drug trafficking and began a new search for evidence of child pornography. The court held that the additional images of child pornography were inadmissible since they were not authorized by the warrant. 46 Although declining to rule on the issue of what constitutes plain view in the context of computer files, the Tenth Circuit said that the images of child pornography were 47 not in plain view because they were located in closed files. United States v. Osorio, 66 M.J. 632 (A.F. Ct. Crim. App. 2008). Relying on the Tenth Circuit s rationale in Carey, the court in United States v. Osorio 48 found that search warrants for computers must contain specificity not only as to the scope of the warrant, but also as to the process which will be used to conduct the search. 49 Plain view cases are best analyzed on a fact-specific, case by case manner. Osorio clearly illustrates this point: based on the facts of the case, the Air Force Court of Criminal Appeals found that an agent went outside of the scope of the search warrant and therefore the images she viewed were not admissible under the plain view doctrine. In Osorio, agents had a search warrant to search appellant s laptop computer for photos relating to an alleged sexual assault that occurred 42 Id. at 1276. 43 Id. at 1275. 44 Carey, 172 F.3d at 1273 n.4. 45 Id. at 1273. 46 Id. 47 Id. 48 Osorio, 66 M.J. 632 (A.F. Ct. Crim. App. 2008). 49 Id. at 637. 5
at a party. The appellant was not under any suspicion of wrong doing. The magistrate limited the scope of the search warrant by the date of the photos. 50 A second agent was asked to prepare the hard drive for shipment to a forensic lab; she was not assigned to the case and was not aware of the scope of the warrant. 51 This second agent copied appellant s hard drive then confirmed the copy was an exact mirror image of the hard drive by using forensic software to view all photos as thumbnail images. 52 Like in Carey, the Osorio court found the agent s intent to be a significant factor on the issue of scope. That is, the agent saw what appeared to be nude people in the thumbnail images but was unable to confirm that the images contained children until she double clicked an image to enlarge it. 53 According to her testimony, she opened the image not to verify it was a mirror image of the other computer but, to make sure it wasn t contraband. 54 The court found that the agent s acts ran afoul of the well-settled principle that that the plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. 55 There are several interesting facts at play in Osorio. The first relates to the language of the search warrant that authorized the agent to search for photos relating to a certain date. Such a search would miss any relevant photos if the image had been accessed after its date of creation. For example, the agent would likely miss any photos that were pulled up for printing, editing, or viewing unless these acts occurred on the day that the pictures were created. The fact that the agent who prepared the copy of the hard drive had no knowledge of the case or the search warrant is significant as to the outcome of the case. In addressing the agent s lack of knowledge about the terms of the search warrant, the court noted: We recognize this oversight was probably due to the fact that her job was not to investigate the computer data, instead it was to make a mirror image of the hard drive; however, as an OSI agent, when she 50 Id. at 636. 51 52 Id. at 634-65. 53 Id. 54 Id. at 636. 55 See, Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971); Osorio. 66 M.J. at 637. 6
began to search for contraband, she should have become familiar with the terms of the warrant. 56 Rejecting the argument that the images of child pornography were admissible under the plain view doctrine, the Osorio court said that opening thumbnails was on par with moving an object, and the distinction between looking at a suspicious object in plain view and moving it even a few inches is much more than trivial for the purpose of the Fourth Amendment. 57 2. Computer as Container State v. Schroeder, 613 N.W.2d 911 (WI. App. 2000). The court in State v. Schroeder 58 rejected the idea that computer searches require a special approach. In Schroeder, investigators had a search warrant to seize defendant s computer in order to search for evidence of online harassment. 59 As was his usual procedure, the agent began systematically opening all user created files and in the course of doing so opened a file containing what appeared to be child pornography. 60 The court said the procedure used by the agent was a sensible one; limiting a search to the types of evidence sought would enable a defendant to easily hide computer evidence; i.e., police would not be authorized to search for child pornography in a file labeled 1986.taxreturn. 61 The court held that the image was admissible under the plain view doctrine finding that the discovery of child pornography was no different than an investigator opening a drawer while searching for drugs and seeing a nude picture of a child on top of a pile of socks. 62 56 Id. at 636, n.9. 57 Osorio, 66 M.J. at 637 (quoting Arizona v. Hicks, 321 U.S. at 325). 58 State v. Schroeder, 613 N.W.2d 911 (WI. App. 2000). 59 Id. at 914. 60 Id. at 916. 61 Id. 62 Id. 7
United States v. Gray, 78 F. Supp. 2d 524 (E.D. Va. 1999). Also taking the computer as container approach, the court in United States v. Gray, 63 analogized searches of computers to searches for paper documents located in files in that there will often be an intermingling of relevant and irrelevant materials. 64 A warrant authorizing agents to search a home or office for documents containing certain information entitles the agents to examine all of the documents at the site, as few people keep documents of their criminal transactions in a folder marked crime records. 65 In Gray, agents executed a search warrant at defendant s home in connection with a hacking violation. 66 The agent conducting the search opened a directory in order to see a list of the individual files and subdirectories located within. Pursuant to his usual practice, he began systematically opening the files and subdirectories within the directory. The agent opened a subdirectory entitled Teen, that contained pornographic images. 67 Continuing his search for items listed in the warrant, the agent subsequently opened a file entitled Tiny Teen, that also contained images the agent suspected were child pornography. 68 In denying the motion to suppress the images of child pornography, the court began its analysis by taking note that the Fourth Amendment requires the items sought by the warrant to be listed with particularity sufficient to enable an officer to determine with reasonable certainty the items he is authorized to seize. 69 Whereas an officer might have little problem making this determination when he discovers weapons during a search for weapons, the same cannot be said when the search is for documents or records. In circumstances in which it is not immediately obvious if a certain item is within the scope of the warrant, the officer must examine the object to make the determination. 70 In a search for documents or records, all documents must be examined to ascertain whether they are the type of papers covered by the search warrant. 71 63 United States v. Gray, 78 F. Supp. 2d 524 (E.D. Va. 1999). 64 Id. at 528. 65 Gray, 78 F. Supp. 2d at 528 (quoting United States v. Hunter, 13 F. Supp. 2d 574, 582 (D. Vt. 1998)). 66 Gray, 78 F. Supp. 2d at 528. 67 Id. at 527. 68 Id. 69 Gray, 78 F. Supp. 2d at 528(citing United States v. George, 975 F.2d 72, 74 (2 nd Cir 1992)). 70 Gray, 78 F. Supp. 2d at 528 (citing United States v. Slocum, 708 F.2d 587, 604 (11 th Cir. 1983)). 71 Gray, 78 F. Supp. 2d at 528 (citing Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976)). 8
The court held that the evidence found in the subdirectories was admissible under the plain view doctrine: the agent was entitled to examine all of the defendant s files to determine if they contained the information specified by the warrant, 72 and in doing so discovered images that were clearly incriminating on their face. 73 3. The Ninth Circuit, BALCO, and the plain view doctrine. In the Ninth Circuit case, United States v. Comprehensive Drug Testing, 74 (opinion filed August 26, 2009) Chief Judge Alex Kozinski sets forth a set of guidelines for searching computers: When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Gibberson, 527 F.3d 882 (9 th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows: 1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. 2. Segregation and redaction must either be done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigator any information other than that which is the target of the warrant. 3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial for a. 4. The government s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by case agents. 72 Gray, 78 F. Supp. 2d at 529. 73 Id. 74 United States v. Comprehensive Drug Testing, 2009 WL 2605378 (9 th Cir. (Cal.)). 9
5. The government must destroy, or if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. United States v. Comprehensive Drug Testing, 75 is interesting, perhaps even astonishing, for many reasons. It has the effect of banning plain view in the context of computer searches through the creation of a set of prophylactic rules. The guidelines ensure that the government can never be in position from which it could discover evidence in plain view. Will magistrates now refuse to sign otherwise valid search warrants, i.e., based on probable cause and comporting with the particularity clause, if they are not satisfied with the government s explanation as to manner in which the warrant will be executed? Chief Judge Kozinski s opinion is quite a departure from that which he issued in 2004 in United States v. Hill., 76 a case that also dealt with issues relating to the execution of search warrants for computers and other digital media. The Ninth Circuit agreed with Kozinski s opinion that (1) due to fact that computer searches often involve intermingled materials that are difficult and time consuming to separate on-site, it is reasonable to seize all media and take it off-site for examination by an expert. 77 The Ninth Circuit relied on Judge Kozinski s language in addressing the question of search methodology, holding that it is unreasonable to force police to limit their searches to files that the suspect has labeled in a particular way. There is no way to know what is in a file without examining its contents, just as there is no sure way of separating talcum from cocaine except by testing it. The ease with which child pornography images can be disguised whether by renaming sexyteenyboppersxxx.jpg as sundayschoollesson.doc, or something more sophisticatedforecloses defendant s proposed search methodology. 78 C. Must police obtain a second Warrant? Assume that a computer is not a container capable of storing information like a filing cabinet and therefore a search warrant for data in a computer does not entitle an officer to look anywhere in the computer that the document may be 75 States v. Comprehensive Drug Testing, 2009 WL 2605378 (9 th Cir. (Cal.)). 76 United States v. Hill, 322 F. Supp.2d 1081 (C.D. Cal. 2004), aff d, 459 F.3d 966 (9 th Cir. 2006). 77 United States v. Hill, 459 F.3d 966, 974-75 (9 th Cir. 2006). 78 Id. at 978, quoting, United States v. Hill, 322 F. Supp.2d 1081, 1089-91 (C.D. Cal. 2004). 10
stored or hidden. The officer states in his affidavit that he will employ a specific method in order to search for the type of evidence stated; i.e., in an investigation for tax fraud, he might restrict his search to files of the type that might logically contain financial data. In the course of the search authorized by and according to the terms of the warrant, the officer nevertheless comes across something outside the scope of the warrant; for example, upon opening a file with an extension indicating it contains a spreadsheet, he finds child pornography instead. Courts advocating the special approach have uniformly held that when an officer searching a computer comes across something outside of the scope of the search warrant, he must suspend his search, go to the magistrate, and get a second warrant encompassing the newly found evidence before he can resume his search. 79 Until it has been uniformly resolved by the courts what constitutes plain view in the context of computer files, it seems that obtaining a second warrant, while perhaps unnecessary, is the most cautious approach. 79 See, e.g., Carey, 172 F.3d at 1276; United States v. Walser, 275 F.3d 981, 987 (10 th Cir. 2001); Osorio, 66 M.J. at 636. 11