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The Fourth Amendment and ESI
Courts have long acknowledged that searches of computers and other mediums storing electronic information (ESI) often involve a degree of intrusiveness much greater in quantity and in kind from searches of other containers. So one would have expected that given that the computer has been around for several decades including the use of the ubiquitous cell phone as one's "always at the ready" personal computer, the particularity rules for search warrants targeting ESI would be clearly defined. Sorry, kemo sabe, not today. Accordingly, this article will review some recent case law that spotlights this ever developing area of the law.
The Fourth Amendment's Warrant clause provides that "… no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (Emphasis supplied.) U.S. Const. Amend. IV. When written, our founders' major concern was the so-called "general warrants" of the King used to harass and arrest anyone who dared question his authority. The founding generation "… reviled 'general warrants' and 'writs of assistance' of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the revolution itself." Riley v California, 134 S. Ct. 2473, 2494 (2014) (Roberts, C.J.) See, e.g., Maryland v. Garrison, 480 U.S. 79, 84 (1987); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).
The presumption of regularity that accompanies the issuance of a search warrant is undermined by deficits in its particularity. "The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional. Stanford v. Texas, 379 U.S. 476 (1965); United States v. Marti, 421 F.2d 1263, 1268-1269 (2nd Cir. 1970).
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