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Tuesday, October 27, 2009

Puzzling Suppression Decision in Email Search Case

I'm as happy as anyone to see Fourth Amendment violations redressed, but a recent decision of Judge Block of EDNY, reported in The New York Times, leaves me scratching my head.  Based on undisputed probable cause, the FBI obtained a warrant for an email account in a fraud case.  Google turned over a CD copy of the account, and there was at least one "smoking gun" email.  The judge suppressed for violation of the Fourth Amendment's command that warrants "particularly describ[e] the place to be searched, and the persons or things to be seized."  But this warrant was particular; the email account was place to be searched and the thing to be seized.  Judge Block found fault because the search and seizure was not limited to discovery of "evidence of a crime."  But here, any arguable defect is formal.  Google can't be asked to turn over only "evidence of a crime"--no data-holder can make that judgment, so the seizure of an email account (or computer) necessarily includes more than evidence of crime, just as the police necessarily seize an entire house even if they are only looking for a few things in it.  As to the search, an FBI agent can't read only the emails that are "evidence of a crime" any more than they can search a house for a gun without looking at things that are not guns along the way. 

Judge Block cited some "general warrant" cases, like United States v. George, 975 F.2d 72 (2d Cir. 1992), but those cases invalidated warrants authorizing searches of homes for, and seizures of, "evidence of crime" without specifying the crime.   They were general warrants in that they allowed search and seizure of everything and anything.  By contrast, this warrant applied only to a specified email account, that would have to be seized and searched in toto in the course of any search. 

Am I missing something, or is this decision a blunder? 

Posted by Marc Miller on October 27, 2009 at 01:07 AM | Permalink


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I think the short answer is that the holder's interest in a copy of the contents of an email account is privacy, not possession, therefore search, not seizure. The holder has whatever ability to access the email that existed before. Put another way, I understand that courts regularly uphold mirroring hard drives and searching the mirror, when the probable cause exists only for certain files that are somewhere on the drive. This is because the level of interference with possession is different than if a house had been seized to look for something in it. Also, it is possible to take a disk away and search it carefully and safely off site, something that is simply not possible with a house.


Posted by: Jack | Nov 4, 2009 12:53:55 AM

Well, I don't understand why they had to seize the whole account on CD. Couldn't they just look at the e-mails in the account, like searching through a house for a gun, and take only the e-mails that revealed a crime, like seizing only the gun?

Getting the stuff on CD seems like a convenience to the FBI, not a necessity. Sure, they had to search through all the e-mails, but searching is different than seizure.

Here, they didn't just search the whole house, they seized the whole house and took it with them.

And certainly the FBI can't seize someone's house and "put it in an evidence bag," so to speak, simply because it may contain a gun that is evidence. The house itself is not, if you are just looking for a gun, and seizing the whole account simply wasn't necessary, but only convenient.

Imagine if the FBI were looking for a letter, that was evidence of a crime, in someone's house and rather than going through the mail at that house and pulling out the one letter evidencing a crime simply seized the entire stack of mail and took it with them.

Posted by: David Gipson | Nov 2, 2009 3:50:06 PM

Minor correction--Judge Block is EDNY.

Posted by: D | Oct 27, 2009 12:22:04 PM

I offer an analysis of the case here.

Posted by: Orin Kerr | Oct 27, 2009 3:27:45 AM

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