Sixth Circuit Agrees With The Third, Seventh, and Tenth Circuits: A Computer Is Not A File Cabinet Under The Fourth Amendment
An earlier post considered the wide array of analyses employed by the courts of appeal in assessing under the Fourth Amendment the constitutionality of searches of computers and other electronic storage devices. (An article by the author, expanding substantially on the short-form blog entry, may be found at "Computer Search and Seizure Under the Fourth Amendment: The Dilemma of Applying Old-Age Principles to New-Age Technology," Criminal Law Reporter (March 2, 2011)). The differences among the courts turn on the degree to which they view the search of an electronic storage medium as like, or as unlike, a traditional search of a file drawer or other container of papers. A plurality of circuit courts have required law enforcement agents to proceed cautiously in searching through computers, cognizant both of the quantity of private data housed in a computer and the potentially corrosive effect on expectations of privacy when the “plain view” doctrine is used to justify a close review of data far afield from the original object of the search.
In a recent decision involving the search of a computer, a panel of the Sixth Circuit has taken its place in the cautious center of the judicial spectrum. The case of United States v. Lucas, 2011 WL 1775685 (6th Cir., May 11, 2011) involved an appeal of the denial of a motion to suppress child pornography found on a computer thumb drive; the appeals court focused largely on the extent to which Lucas’s consent to search his apartment for evidence of drug violations (he grew his own marijuana there) authorized a police officer to review the contents of the defendant’s laptop computer and associated storage media. Generally, the Sixth Circuit held in affirming denial of the motion, the breadth of a consented-to search is determined by an objectively reasonable standard -- what would a typical, reasonable person have understood he was consenting to? The seminal case is Florida v. Jimeno, 500 U.S. 248 (1991), in which the Court held that a police officer given consent to search a car for drug evidence enjoyed the owner’s consent to open a closed paper bag in the car, because it was understood that such containers might hold drugs. Id. at 251.
So, Lucas’s consent to a search for similar evidence effected a consent to search the entire apartment, including any closed containers; the laptop and its thumb drive were akin to a closed container, and their search was within the scope of the overall consent.
Nevertheless, the Lucas court showed that it -- unlike, say, the Fourth Circuit in United States v. Williams, 592 F.3d 511 (4th Cir.), cert. den., 131 S. Ct. 595 (2010) -- understood the difference between a file cabinet and a computer. The Lucas court warned that its affirmance “should not be read as a grant of broad authority to the police to open a suspect’s non-secured computer and examine at will all of the electronic files stored there.” In this case, the searching officer had conducted a limited search and, after finding a few images of child pornography, had concluded that search; a later-arriving computer search team then obtained Lucas’s second consent to continue and expand a computer search. A more intrusive and longer initial search could well have warranted suppression, notwithstanding the initial consent to search all closed containers in the apartment, because of the Fourth Amendment difference inherent in those special kinds of containers which store electronic data.
(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)