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Mark Olberding Aug. 30, 2009

Plain view is one of the exemptions to the rule that law enforcement needs a search warrant to use evidence against a suspect. For example, if a car is stopped for speeding and the officer sees marijuana sitting out in the open, in “plain view”, the officer can seize the marijuana and use it to charge a person with possession of marijuana.

Computers and computer files offer much more of a challenge in defining what plain view is. Suppose a computer is lawfully seized for being involved in drug transactions. Since it is unlikely that there is going to be a file that says “illegal drug sales”, law enforcement has the right to go through every file in the computer,  decrypt any encrypted file, looking for evidence of drug transactions. So far, so good. But, what if, in going through the computer files, law enforcement finds evidence of a theft ring? Law enforcement has argued that since they had to go through every file the evidence of the theft ring was right there and in plain view.

Now, for apparently the first time, a federal court has disagreed. In United States v. Comprehensive Drug Testing, Inc. the United States Court of Appeals for the Ninth Circuit has ruled otherwise. People may remember this case as the BALCO case involving A-Rod, Manny Ramirez and other major league baseball players using steroids provided by BALCO. The FBI seized the computers from a testing company and found evidence implicating many more people than the warrant specified the FBI was looking for. The FBI then said they could use what they found because the files and the information in them were in plain view.

The Ninth Circuit disagreed. In it’s ruling, the court stated that the first step when issuing a warrant for a computer seizure is the magistrate issuing the warrant for electronic files “should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.”

[T]he government should, in future warrant applications, forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn’t consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.

It is unlikely that the FBI and Department of Justice are going to accept this ruling and it may well be appealed to the Supreme Court. It also appears that this issue has not been raised here in Iowa. Nonetheless, this ruling should provide some comfort to people who have had their computers seized by law enforcement.