Peter Smythe, P.C.

Alex Kozinski, the chief judge of the Uni­ted Sta­tes Court of Appeals for the Ninth Cir­cuit, has writ­ten an en banc opi­nion in Uni­ted Sta­tes v. Com­prehen­sive Drug Tes­ting, Inc. that is sure to light the fire of the search-​and-​seizure sup­pres­sion world for the next hun­dred years or so. At issue was what pro­ce­du­res and safe­guards fede­ral courts must observe in issuing and admi­nis­te­ring search warrants and sub­poe­nas for elec­tro­ni­cally sto­red infor­ma­tion. Kozinski’s opi­nion effec­ti­vely puts a dead stop on the Government’s sophis­tic argu­ments that the per­mit­ted sei­zure of one batch of elec­tro­nic infor­ma­tion basi­cally gives it carté blanche to the whole caboodle.

In CDT, the Govern­ment had pro­ba­ble cause as to just ten base­ball pla­yers when it began see­king warrants of their drug tes­ting records. It, howe­ver, sei­zed the records of hun­dreds of pla­yers based on the two-​pronged argu­ment that it had to over-​seize elec­tro­nic records (“we don’t know what it is until we see it”) and everything that it did seize was fair game under the plain view doc­trine (“well, now that we’ve seen it we get to keep it and use it”).

The Ninth Court said that the Government’s argu­ment basi­cally swa­llo­wed the Fourth Amendment’s pro­tec­tions against unrea­so­na­ble searches and sei­zu­res and it set out gui­de­li­nes for the Govern­ment to follow when it wants to obtain a warrant to exa­mine a suspect’s com­pu­ter hard drive or elec­tro­nic sto­rage medium:

• Magis­tra­tes should insist that the govern­ment waive reliance upon the plain view doc­trine in digi­tal evi­dence cases.
• Segre­ga­tion and redac­tion must be either 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 inves­ti­ga­tors any infor­ma­tion other than that which is the tar­get of the warrant.
• Warrants and sub­poe­nas must disc­lose the actual risks of des­truc­tion and of infor­ma­tion as well as prior efforts to seize that infor­ma­tion in other judi­cial fora.
• The government’s search pro­to­col mst be desig­ned to unco­ver only the infor­ma­tion for which it has pro­ba­ble cause, and only that infor­ma­tion may be exa­mi­ned by case agents.
• 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.

This deci­sion should keep white-​collar defense law­yers in the Fifth Cir­cuit busy for years to come.

A copy of the case may be down­loa­ded here — Uni­ted Sta­tes v. Com­prehen­sive Drug Tes­ting, Inc..

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