Search Warrants and the Seizure of Electronic Devices

Delays in Searching Seized Electronic Devices

Good Faith Exception to the Exclusionary Rule

(1) An officer’s objective and reasonable (i.e., in “good faith”) reliance upon a subsequently invalidated search warrant, unless the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in the existence of probable cause entirely unreasonable, precludes the suppression of the resulting evidence. 

(2)  An unreasonable delay in searching a defendant’s impounded property may result in the suppression of evidence recovered as a result of the search, but only if the delay was result law enforcement’s deliberate, or at least negligent, misconduct.

On October 26, 2016, a “tipster” reported to the Department of Homeland Security (“DHS”) that Royce Jobe (defendant) was growing marijuana at his residence in Van Nuys, California.  The tipster (apparently a neighbor) reached this conclusion from his or her observation of a new “privacy fence” that was built on the property, blocking the view of the detached garage, the strong smell of marijuana emanating from the garage, and increased activity late into the evening, with multiple vehicles and individuals coming and going.  DHS Special Agent Paul Cotcher was assigned to the case on around November 3rd.  Investigating, he determined that the electrical power (registered in someone else’s name) for the house had recently “spiked.”  Surveilling the property, he noted that “PVC piping, planters, and cooling fans” were attached to and around the garage. Agent Cotcher also discovered that defendant had a marijuana business (“420 Boutique”) registered in his name.  He also had prior convictions for possession of a firearm and marijuana.  Agent Cotcher obtained a state-issued search warrant authorizing a search of defendant’s residence and garage, with permission to seize certain property including “[a]rticles of personal property tending to establish and document sales of [marijuana].”  Without any explanation in the warrant as to why he thought computers might be involved, Agent Cotcher included a request for permission to seize any “hard drives” found at the residence.  The warrant was executed on November 22nd.  Among the items seized were drugs, a pistol, and defendant’s laptop, along with other electronic devices. The laptop was not searched at that time.  After execution of the warrant, Agent Cotcher contacted the U.S. Attorney’s Office asking if the case could be prosecuted federally.  He did not receive an affirmative answer until December 1st.  During that intervening time period, the investigation continued with Agent Cotcher collecting more evidence of defendant’s sale of marijuana from him home.  Upon hearing back from the U.S. Attorney, Agent Cotcher began drafting an affidavit in support of a criminal complaint and a federal search warrant for the laptop, not completing this work until December 7th.  On December 12th—twenty days after the laptop was seized—the complaint was filed and the warrant was signed. Agents immediately searched defendant’s laptop, finding stolen credit card and bank account information.  He was subsequently charged in federal court with identity theft, accessing devices without authorization, mail fraud, and being a felon in possession of a firearm.  Defendant moved to suppress the evidence found on his laptop.  The district court judge granted the motion, ruling that although the laptop had been lawfully seized (i.e., with sufficient probable cause), the government’s delay of 20 days before obtaining the federal warrant to search it was constitutionally unreasonable; a Fourth Amendment violation. The government appealed.

Then Ninth Circuit Court of Appeal reversed. 

(1) Seizure of the Laptop.  The district court judge had held that seizure of the laptop from defendant’s house upon executing the state-issued search warrant was lawful.  The Ninth Circuit disagreed, but ruled that suppression of the laptop itself was not appropriate under the circumstances.  In reviewing Agent Cotcher’s affidavit to the state warrant, it was noted that although asking for permission to seize “hard drives,” the affidavit failed to mention a computer or other electronic devices, much less state any facts suggesting that defendant’s laptop would likely contain evidence of a marijuana growing operation.  However, it is now well established that “(t)he fact that a Fourth Amendment violation occurred . . . does not necessarily mean that the exclusionary rule applies.” (Herring v. United States (2009) 555 U.S. 135, 140.) For instance, a court should not apply the exclusionary rule in any case where an officer objectively and reasonably (i.e., in “good faith”) relies on a subsequently invalidated search warrant, unless the warrant was “based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’”  (United States v. Leon (1984) 468 U.S. 897, 922-923.)  In this case, Cotcher’s affidavit supporting the state warrant contained sufficient information to render his reliance on the warrant objectively reasonable. It laid out facts indicative of a large-scale marijuana growing operation, including information from a tipster that was corroborated by Cotcher's own observations, investigation, and experience. Given the apparent scale of defendant’s operation, as indicated by him having a registered marijuana business and the substantial, consistent foot traffic to his residence late at night, the affidavit provided “a colorable argument for probable cause” to seize items, including documents, tending to help prove the sales of marijuana. Although not specifically listed in the warrant, Agent Cotcher reasonably relied on the warrant’s authorization to seize anything that might contain such documents, including computers such as defendant’s laptop.  

(2)  The Search of the Laptop:  Overruling the trial court’s determination that the contents of the laptop must be suppressed due to the “unreasonable” 20-day delay between its seizure and the eventual search, the Ninth Circuit again noted that the existence of a Fourth Amendment violation (assuming the 20-day delay was “unreasonable”) does not always dictate that the resulting evidence should be suppressed.  The purpose of excluding evidence under the exclusionary rule is “to deter deliberate, reckless, or grossly negligent conduct.”  (Herring, supra, at p. 144.)  In this case, the Court found no evidence of any such conduct on Agent Cotcher’s part, noting that there was no indication that he deliberately delayed the process.  Rather, immediately after seizing the laptop, Agent Cotcher contacted the U.S. Attorney’s Office about prosecuting the case federally.   During the ten days between that initial contact and being told that the U.S. Attorney would in fact handle the case—a period which included the Thanksgiving holiday—Agent Cotcher continued with his investigation, gathering even more evidence of defendant’s illegal marijuana growing operation.  Once the U.S. Attorney responded to his inquiry, he began drafting a detailed and lengthy affidavit in support of a federal search warrant, a project which he finished within less than a week, and then transmitted it to an Assistant U.S. Attorney for review (in accordance with the U.S. Attorney’s policy).  Although Agent Cotcher could have been more efficient in preparing his paperwork, his delay in doing so does not evince negligence, let alone deliberate and culpable misconduct.  Defendant cited the case of United States v Cha (9th Cir. 2010) 597 F.3rd 995, for the proposition that an unreasonable delay mandated the suppression of the resulting evidence.  The Court, however, rejected this argument as applied to this case, noting the factual differences between Cha and the instant case.  Where Agent Cotcher did not engage in any purposeful, time-delaying screwing around, the officers in Cha inexcusably delayed for 26½ hours in obtaining a search warrant for Cha’s residence while Mr. Cha was forced wait outside—even into the early morning hours—with officers refusing even to allow him to retrieve his diabetes medication.  In Cha, it was noted that “none of this delay was ‘unavoidable’” . . . The officers . . .  had a ‘nonchalant attitude’ and proceeded in a ‘relaxed fashion.’” (pp. 1005-1006.)  As noted by the Court, when determining whether to employ the exclusionary rule, “[A]n assessment of the flagrancy of the police misconduct constitutes an important step in the calculus.”  (United States v. Leon, supra, at p. 911.)  The Court further noted that the evidence obtained from the laptop was not the product of the delay itself.  “Unreasonable delays” fall into the “category of cases” where the alleged “police misconduct effectively bears no ‘fruit.’”  The Court ruled, therefore, that the 20-day delay between the seizure of defendant’s laptop and its eventual search did not warrant the suppression of the resulting evidence.

Lessons learned from this case include: (1) Be sure to include in your search warrants a specific request to seize and search all computers and other computer-related devices, with justifications for why you believe such electronic devices will contain evidence relevant to the crime(s) being investigated, even if it is based solely on your own training and experience (which, of course, you will also describe in disgustingly intimate and immodest detail in your affidavit).  (2)  Pursue the search of any seized electronic devices with dispatch, being ready to justify the time it took to accomplish the search.  Also, on the issue of delays in searching a seized laptop computer, see United States v. Sullivan (9th Cir. 2015) 797 F.3rd 623, 633 (California Legal Update, Vol. 20, #3, Feb. 25, 2015); finding 21 days to be reasonable when during this time the Feds held onto defendant’s laptop while defendant himself was in custody, so he couldn’t use it anyway, he was subject to a Fourth waiver, where defendant gave consent to the laptop’s seizure, and where the computer had to be transferred to a different agency to conduct the necessary forensic search.