The Fourth Amendment to the United States Constitution; Article I, Section 12, of the Florida Declaration of Rights; and Florida Statute 933.05 each require that the affidavit in the application for search warrant describe the “person, place or thing to be searched” and “particularly describing the property or thing to be seized.” The role of the particularity clause is to “stand as a bar to exploratory searches by officers armed with a general warrant … and to limit the searching officer’s discretion in the execution of the warrant” thereby protecting the privacy and security of individuals against arbitrary invasion by the police.
The requirement that a search warrant “describe with particularity” the things to be seized has two separate elements. First, the warrant must describe the things to be seized with enough precision that it tells the officers how to distinguish the items properly subject to seizure from items not subject to seizure. The purpose of this element of the particularity clause is to eliminate any discretion by the officers executing the warrant as to what is to be taken. The second element of the particularity requirement is that the items set out in the warrant to be seized should be limited to the scope of the probable cause established in the officer’s affidavit. These two elements taken together reign in officer discretion, forbid officers from engaging in overboard seizures and minimize unwarranted intrusions upon individual privacy.
The relevant federal and Florida case law supports the belief that a citizen not only has a reasonable expectation of privacy in his or her home but also in his or her personal computers and other electronic devices. “Individuals generally possess a reasonable expectation of privacy in their home computers.” United States v. Lifshitz, 369 F.3d 173, (2d Cir. 2004) and that “A personal computer is often a repository for private information the computer’s owner does not intend to share with others. For most people, their computers are their most private spaces.” United States v. Andrus, 483 F.3d 711 (10th Cir. 2007).
A police officer intending to search a computer or other electronic device must make a decision on whether the property to be seized is the computer hardware itself or simply information contained within the computer or electronic device. To seize the computer hardware, the affidavit authorizing the search warrant must establish probable cause that the computer or electronic device is itself contraband, an instrumentality of a crime or the fruits of a crime. In United States v. Hay, 221 F.3d 630 (9th Cir. 2000), the court upheld the seizure of the entire computer because the affidavit established that child pornography would be found and thus the computer was contraband. In another federal case the affidavit established probable cause that the computer was used to commit hacking offenses and send threats and was an “instrumentality” of a crime. In these cases the search of the entire computer was upheld by the courts.
However, many cases involve only probable cause to search for information within the computer or device. It is these cases which require special scrutiny. When it is clear from the facts set out in the officer’s affidavit for search warrant that there is a distinct time frame during which the alleged crime(s) have occurred or that the relevant information pertains to communication between the suspect and one or more specific individuals the search warrant must be limited to those specifics and cannot authorize a seizure of “any and all computer equipment, hard drives or central processing units, and data” when there is only probable cause to search for specific and limited information. In these cases the search warrant must focus on content of the relevant files rather than the physical storage media such as hard drives, all data and central processing units.
Just as officers cannot simply request a warrant to seize “all records” from a business unless they have probable cause to believe that criminal activity under investigation pervades the entire enterprise a search warrant for a computer or other device cannot authorize the search of “any and all data” unless the computer is itself contraband, an instrumentality of a crime or fruits of a crime. Many times search warrants for computers authorize sweeping, wide ranging and unlimited searches not supported by the affidavit which run a foul of the particularity clause. This kind of search warrant is subject to suppression as it violates the Fourth Amendment and Article I, Section 12, of the Florida Declaration of Rights.
In my next post I’m going to discuss another very important area of search and seizure law … the execution of the search warrant and the remedies available to a citizen when the police exceed the scope of the search warrant.