Computer Search - Good Faith Exception Applied
In United States v. Riccardi, No. 03-3132 (April 19, 2005), the Tenth Circuit held that the good faith exception applied to a warrant for a computer search. The warrant lacked sufficient particularity in that it authorized the seizure of a computer and a search of its complete hard drive. However, an individual officer's consultation with a district attorney about whether he needed a more specific warrant and a limited search of the computer files convinced the Tenth Circuit that the evidence discovered was properly admitted at trial.
Mr. Riccardi was convicted of possession of child pornography. One count involved images retrieved from his computer's hard drive. A warrant was executed at Mr. Riccardi's residence for information related to lurid phone calls he had made to teenage boys. While at his home, police located a computer. Based on other material found in the execution of the search warrant, the Tenth Circuit decided that there was sufficient evidence to obtain a warrant for the seizure of the computer.
The warrant authorized the seizure of the computer and the search of "all electronic and magnetic media stored within such devices". The warrant did not specify the items for which the officers were authorized to search. The Tenth Circuit cited United States v. Carey, 172 F.3d 1268, 1271 (10th Cir. 1999), in holding that the warrant lacked the Fourth Amendment's required particularity:
The underlying premise in Carey is that officers conducting searches (and the magistrates issuing warrants for those searches) cannot simply conduct a sweeping, comprehensive search of a computer's hard drive. Because computers can hold so much information touching on many different areas of a person's life, there is a greater potential for the "intermingling" of documents and a consequent invasion of privacy when police execute a search for evidence on a computer. . . . Thus, when officers come across computer files intermingled with irrelevant computer files, they may seal or hold the computer pending approval by a magistrate of the conditions and limitations on a further search of the computer. . . . Officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant.
However, "good faith" saved the day for law enforcement. The investigating agent opened the computer and found "thumbnail files of child pornography". The agent suspended the search and asked whether a more specific warrant would be required. A prosecuter told him no and the agent proceeded. The Court noted also that the affidavit for search warrant was specific, the search methodology limited the search to finding child pornography, and the agents seized only child pornography.
The Court distinguished its holding from United States v. Leary, 846 F.2d 592 (10th CIr. 1988), in which a broader search was conducted. The determining fact in Riccardi appears to be the labeling of the files in the computer. If the agents had conducted a search for child pornography through the complete hard drive the Leary would likely dictate the suppression of the evidence. As it was, the files were marked and the agents merely extracted the marked files. Ironically, it was the marking of the files that prompted the agent to ask for advice.
Since you're in New Mexico where state law does not honor the federal good-faith exception, would that search of the hard drive be illegal if the case was brought under New Mexico law?
The logical answer is yes. Obviously, if the case were prosecuted in federal court in New Mexico, the Tenth Circuit law would control. However, in our state courts the lack of the good faith exception should result in suppression of the evidence. The officer's question about whether a more specific warrant was required would be used to show the warrant's lack of particularity and not the officer's "good faith". While the warrant appeared to be clearly overbroad, a New Mexico state court judge would still confront a difficult decision to suppress evidence in a child pornography case.
Also, I could see an "inevitable discovery" argument being made against suppression. Given the fact that the files in the computer were marked as child pornography, the state prosecutor would argue that the files would have been discovered anyway. Here's a good comment on a Ninth Circuit case I pulled from John Hall at FourthAmendment.com:
Laptop computer obtained by fraudulent use of a credit card was seized by state officers under a SW; they asked the store defrauded if they could look at the hard drive before returning it, and store consented; they found child porn, ceased the search and got another warrant for that; search valid; no REP[reasonable expectation of privacy] in a stolen computer: United States v Caymen (2005, CA9 Alaska) 2005 US App Lexis 6833 (Note: Inevitable discovery would likely have been a good alternative here, too. The store would have to have formated or removed the hard drive to resell the computer, and they likely would have found it.).
So while you would think that our state courts' lack of a "good faith exception" to the warrant requirement would change the result in state court, you can never be too sure.
Thanks for your reply, but it's frankly troubling to see a criminal defense attorney even suggesting that child pornography might be given less protection under the 4th Amendment than other contraband.
Wouldn't your "inevitable discovery" argument run counter to the Carey decision, which made it clear (as is explicitly stated everywhere) that a search warrant needs to state what was to to be searched, *as well as* what was being searched for? If the search warrant was defective, they shouldn't have seized it in the first place. Isn't that exactly what the exclusionary rule is supposed to protect us from? It's supposed to be a deterrent against police error as well as misconduct.
By saying "a New Mexico state court judge would still confront a difficult decision to suppress evidence in a child pornography case" are you implying that there is anything in child pornography laws or case law suggesting that the 4th Amendment offers less protection for child pornography than, say, drugs and guns? Drugs have no enumerated constitutional protection (except for the "penumbras and emanations" of the medical privay we got from Griswold and Roe), but "non-child" pornography was firmly protected under the 1st Amendment in the 1960s. And gun devotees have the 2nd Amendment.
Because personal computers in a home are often used for writing, shouldn't those computers be afforded the same level of 1st Amendment privay expectation we give to journals and diaries? Wouldn't that imply a "strict scrutiny" standard?
I know that many think there is a "drug exception" to the Bill of Rights, and they do so with good reason. Witness the fact that a convicted murderer can get financial aid for college, but someone with a misdemeanor drug conviction on their record cannot.
With sex offender registries in every state, i suppose the argument could be made that there is also a de facto "sex crime exception" to our civil liberties.
Since you brought it up, it would be greatly appreciated if you could discuss the legal limits (both federal and NM) on using inevitable discovery as an end run against the 4th Amendment's requirement that LE is supposed to know what they're looking for when they execute a search (warrantless or not)?
They might not find what they're looking for, but if they're executing a legal search (or a Terry frisk), evidence of previously unknown crimes is admissible under the expansion of the plain view doctrine often called "plain feel" that resulted in a federal conviction for drug possession as a result of a Terry frisk.
Since the computer files were supposedly labeled in a way that suggested child pornography, could not an alternative basis for the search have been plain view? Aren't they both flawed arguments?
What about the fact that the search warrant was defective in the first place?Although it authorized the seizure and search of the computer, it did not specify exactly what was to be searched for on the computer's hard drive.
What if they found evidence of tax evasion? Would that be admissible?
It was one particular defect in the search warrant which led to the good-faith exception avenue for admitting the evidence into federal court.
So, under *either* basis for legality (inevitable discovery or plain view), and without the good-faith exception, wouldn't the images all be "fruit of the poison tree" in the states which have rejected the good-faith exception to the exclusionary rule? Because the search warrant was overly broad (per Carey) how could anything on that computer be admissible in New Mexico courts?
The DA said to go ahead and execute an overly broad and illegal warrant. Absent the good-faith exception, isn't the "poison tree" doctrine supposed to protect people from illegal searches?
Let's assume that the case was in New Mexico court. What arguments could you make to suppress if the prosecution claimed inevitable discovery?
David, my head is spinning. You bring up many good points and your response shows why this work is so important and so challenging.
As a criminal defense attorney I advocate, but I also advise. Part of the advice is a recognition that real people (judges) are influenced by their own fears, i.e. child pornography, terrorism, child molestation. These fears influence results. Child pornography, and other contrband, enjoy no Fourth Amendment protection. What is protected and what should be protected for the innocent and guilty alike is our homes, personal belongings and papers. Of course, our computers are protected under the Fourth Amendment and should enjoy protection.
If the facts of this search were to be heard in state court in New Mexico, it would take a courageous trial court judge to suppress the evidence. However, I would be confident that our appellate courts would suppress. Trial judges are more susceptible, for lots of reasons, to the sway of fear.
I agree that ultimately, inevitable discovery fails because the warrant requirement can't be bypassed simply because law enforcement would have been granted a warrant if they had merely applied for a warrant.
Thanks again for you input.