Ninth Circuit Court of Appeals Nixes 'Plain View' Doctrine in Digital Evidence Cases

Lora Bentley

Continuing on the theme of e-litigation, the Ninth Circuit Court of Appeals recently handed down a ruling that sets guidelines for investigators who are looking for such evidence. And Compliance Week (subscription required) suggests corporate legal departments should be glad.


Here's the back story, from the Wall Street Journal's coverage of the case:

Federal investigators obtained a warrant to search the computer records of a laboratory that in 2003 had tested hundreds of Major League Baseball players for steroid use. The warrant authorized obtaining the records of 10 players... In the course of searching computer records for the 10 players, government investigators came across evidence of illegal drug use by others and argued they had a right to seize those records as well.


Generally, the plain view doctrine applies, for example, when officers execute a search warrant in an apartment for a certain type of weapon and walk in to find drug paraphernalia on the table. In that case, the latter may be used to support additional charges. Though drug paraphernalia wasn't included in the search warrant, the officers didn't have to do anything to find it. It was in plain view.


In this case, however, the Ninth Circuit determined the plain view doctrine should not apply. Unlike the example above, the investigators didn't just happen across evidence against other players. The directories and files had to be opened. Quoting the court, WSJ writer John Emshwiller explains:

To allow investigators to search through every file, and act on any evidence of illegality they find there, "creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant."


The court then set out requirements for executing search warrants on digital devices.Officers applying to search digital devices have to waive the plain view doctrine, and the search must be conducted by a third party, who will then turn over only the evidence included in the warrant to the investigators. If illegal material not covered in the search warrant (like child pornography) is recovered, it is to be destroyed. Any other evidence not covered in the warrant would then be returned to the device owner.


Though the Ninth Circuit's ruling only applies to searches conducted within its jurisdiction -- in the states of Hawaii, Alaska, Washington, Oregon, California, Arizona, Nevada, Idaho and Montana -- other courts deciding this issue for the first time will undoubtedly look to the Ninth Circuit's decision for instruction.


The U.S. Supreme Court may not want to entertain this case now, but the issue is not one that will go away or resolve itself. It will come up again, and eventually the Supreme Court will have to decide.

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