Eyeballing the evidence

Among the skillions of exceptions to suppression that the courts have engrafted onto the 4th Amendment's protections against unreasonable searches and seizures, even criminal defense lawyers and civil libertarians have a hard time objecting to the theoretical underpinnings of what's known as the "plain view" exception. The underlying idea is that cops shouldn't have to blind themselves. If, by accident, they stumble across what is clearly evidence of a crime, they don't have to pretend they didn't see it.

The plain view exception has been with at least since the Supreme Court approved it, back in 1971, in Coolidge v. New Hampshire. In its pure form, it says simply that when police are where they otherwise have a right to be, looking at what they otherwise have a right to see, and happen by accident to notice what they immediately recognize, without any further investigation, to be contraband or evidence of crime, they can act on it. There are problems in application, but the rule itself really does seem perfectly reasonable.

It's not surprising, then, that courts have been gutting it. In 1990, for instance, in Horton v. California, the Supreme Court eliminated the requirement of inadvertence. The 7-2 decision (written by Justice Stevens) may have made the change seem trivial. It wasn't. The whole point of making the plain view exception require inadvertence is that it would prevent abuse. If police set out to find the evidence, they still needed a warrant. Now, police had an incentive to skip that step. All they had to do was scam there way into the place they thought they'd see the stuff.

Plain view grew in other ways, too. In 1993, the Court adopted a plain feel exception. If you're being patted down for the officer's safety, and the cop feels something in your pocket and can tell, immediately, without asking or taking it out or manipulating it or whatever that it's cocaine, they can use it against you. In some jurisdictions (Ohio, for instance) there's a plain smell exception.

As I say, and even as expanded, there's a certain logic to all of this. If the cops have a right to be someplace, it's not silly to argue that they have a right to see and smell what's there and to act on what's evident. And if they have a right to pat you down, it's not crazy to say they can't take the drugs they find as long as they're not searching for them. (That pesky inadvertence thing keeps coming up at this point.)

It turns out that computers pose special problems. Police will tell you that when they're looking for, say, evidence of financial fraud on your hard drive, they have to look all over and so they might stumble across the kiddie porn. Frankly, that's a bit of a stretch. I'm no computer geek, but they can segregate and only look where the financial stuff should be. That's essentially what they're supposed to do when, say, rummaging through a bank's records for evidence against Bernie Madoff. (Did they do that? Did he use banks?) They're not supposed to just peek at my records while they have a chance.

Which brings us to baseball, steroids, Roger Clemens and Barry Bonds and Alex Rodriguez and so many more.

Unless you've been living under a rock, you know the general story. Major League Baseball, Inc. cut a deal with the player's union to provide for suspicionless, random, anonymous drug testing. The idea was to see just how serious a problem steroids were. The deal was based on a promise of confidentiality. Then the feds got involved.

I'm not going to try and recite the whole sordid tale of government misconduct here, but roughly here's what happened. The government convinced a magistrate that it had probable cause to believe that the testing records of 10 players would provide relevant evidence in its investigation of steroid distributors. The magistrate issued a search warrant with all sorts of conditions designed to prevent the feds from digging around in anyone else's records. The feds ignored all (or at least some) of those conditions. No accident here. They purposely evaded/ignored the conditions.

After several years of litigation over subpoenas and warrants, the case (actually several cases by then) went before the 9th Circuit. Today, the court, sitting en banc, issued its decision. In an opinion by Judge Alex Kozinski (who's had his own computer-related issues, you might recall), the court held against the government. More importantly (except for those involved), the court issued a set of guidelines for these searches.

Technological problems, the court said, would require "overseizing," taking more material than they had a right to (e.g., everything on the hard drive when you're just looking for a few files). Therefore, special protections would be necessary. (I've deleted references to specific pages in the opinion where each of these limitations is discussed.)

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.
2. 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.
3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.
4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.
5. 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.

The key is that first rule. If the government waives plain view, it gets no benefit from rummaging around the hard drive looking for evidence of misconduct. The problem, though, is enforcement.

The opinion says that enforcement duty rests on magistrates, who issue search warrants, and says that if the government is unwilling to accept the limitations, the magistrate should refuse to grant the warrant. Well, maybe. But as Orin Kerr at The Volokh Conspiracy suggests, it's far from clear that magistrates have the authority to refuse to issue search warrants because the government won't accept advance limitations on how they are executed. Besides, restrictions very like these were written into the warrant in these cases. The government ignored them.

Oh, there's another problem. The Supreme Court likes to hear and reverse decisions from the 9th Circuit.

Stay tuned.