holding that the officers exceeded the scope of the search warrant by seizing evidence of child pornography seized under a warrant authorizing police to search the defendant’s computer for evidence of drug crimes after the police had ascertained that evidence of drug crimes was not contained on the computer
How later courts described this case
- holding that the officers exceeded the scope of the search warrant by seizing evidence of child pornography seized under a warrant authorizing police to search the defendant’s computer for evidence of drug crimes after the police had ascertained that evidence of drug crimes was not contained on the computer
- explaining that police officers should generally perform a keyword search of computer files for specific terms sought by the search warrant, and suppressing evidence of child pornography on a computer hard drive 9 when the warrant authorized a search for evidence of drug trafficking
- holding that a general warrant to search all email and fax communications without limiting such a search to crimes being investigated was not sufficiently particular
- finding that “[r]elying on analogies to closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.’ ”
Written by the judges who cited it.
Later courts went against this
Limited by United States v. Rossby, 81 F. App'x 109 (2003)
Moreover, even in the Tenth Circuit, Carey has been limited to its facts.
Distinguished
Distinguished by Patrick Anthony Russo v. State (2007)
Carey is factually distinguishable.
The opinion
BALDOCK, Circuit Judge,
concurring.
I join in the court’s opinion, but write separately to emphasize that the questions presented in this case are extremely close calls and, in my opinion, are totally fact driven.
First, absent Detective Lewis’ testimony, I would not suppress the evidence. “The plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” Coolidge v. New Hampshire, 403 U.S. 443, 466 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971). In light of Detective Lewis’ testimony, just this sort of impermissible general rummaging occurred in this case. The detective’s testimony makes clear that from the time he found the first image of child pornography, he switched from his authorized search for drug-related evidence to another subject— child pornography. At this point, the detective should have ceased his search and obtained a warrant to search the computer files for evidence of child pornography. As Detective Lewis testified, it was clear to him that after he discovered the first image, he had probable cause to believe the computer contained additional images of child pornography, and no exigent cir- *1277 eumstances existed because the computer had been removed to the police station.
In contrast, if the record showed that Detective Lewis had merely continued his search for drug-related evidence and, in doing so, continued to come across evidence of child pornography, I think a different result would be required. That is not what happened here, however.
Second, while agreeing with the majority that Defendant’s consent to the search of his apartment did not carry over to his computer hard drive, I write separately to explain why I think the scope of Defendant’s consent is limited to evidence of drug-related activity. The scope of a consensual search is “generally defined by its expressed object.” Florida v. Jimeno, 500 U.S. 248, 251 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991). To determine the breadth of the consent given by Mr. Carey, we consider what “the typical reasonable person would have understood by the exchange between the officer and the [defendant].” United States v. Elliott, 107 F.3d 810, 815 (10th Cir.1997). Resolution of this issue requires a detailed inquiry into the facts.
The waiver signed by Defendant granted the officers permission to search the “premises and property located at 3255 Canterbury # 10” and authorized the officers to remove any property “if said property shall be essential in the proof of the commission of any crime....” The officer testified that after he arrested Defendant, he told him that “based on what I had just observed in his apartment that I was going to apply for a search warrant.” The officer had just found, in plain view, a bong typically used for smoking marijuana and a small quantity of what appeared to be marijuana. The officer then explained to Defendant that he could consent to a search instead of the officer obtaining a warrant. Defendant told the officer he was unsure. En route to the police station, Defendant asked several questions about the search. Upon arrival at the station, Defendant indicated that he wished to consent. He also told the officer where he would find additional drugs, a scale, a firearm and cash. In addition, Defendant told him where he would find a pornographic videotape. The officer responded that he “couldn’t care less about his pornographic videotapes” and “that wasn’t of concern to me.”
In light of the officer’s conversations with Defendant, a reasonable person would conclude that the statements by the officer limited the scope of the request to drugs and drug-related items in the apartment. See Elliott, 107 F.3d at 815 ; see also, United States v. Dichiarinte, 445 F.2d 126, 129 (7th Cir.1971) (consent to search after officers repeated references to narcotics did not grant officers a license to conduct a general exploratory search). As in United States v. Turner, 169 F.3d 84 (1st Cir.1999), the Defendant’s consent did not include permission to search the hard drive of Defendant’s computer for pornographic or any other type of files, a fact, as the majority points out, the officer recognized because he obtained a proper warrant to search for drug-related evidence before he began opening computer files. Thus, I think the record supports a finding that Defendant’s consent did not extend to a search for pornographic material on the hard drive of his computer. Of course, the officer’s search of the computer hard drive for “evidence pertaining to the sale and distribution of controlled substances” was lawful, in that the officer obtained a valid search warrant to do so.