In re Search Warrant

• Decision Date: 14 December 2012
• Docket Number: No. 10–479.,10–479.
• Citation: 71 A.3d 1158,2012 VT 102
• Parties: In re Appeal of Application for SEARCH WARRANT.
• Court: Vermont Supreme Court

71 A.3d 1158

2012 VT 102

In re Appeal of Application for SEARCH WARRANT.

No. 10–479.

Supreme Court of Vermont.

Dec. 14, 2012.

Thomas J. Donovan, Jr., Chittenden County State's Attorney, Andrew R. Strauss, Deputy State's Attorney, Burlington, and William H. Sorrell, Attorney General, Evan P. Meenan and David E. Tartter, Assistant Attorneys General (On the Brief), Montpelier, for Petitioner.

Matthew Valerio, Defender General, Rebecca Turner, Appellate Defender and Marshall Pahl, Montpelier, for Amicus Curiae Office of the Defender General.

Dan Barrett, Montpelier, for Amicus Curiae American Civil Liberties Union Foundation of Vermont, Catherine Crump and Jason D. Williamson, New York, New York, and Jay Rorty, Santa Cruz, California, for Amicus Curiae American Civil Liberties Union Foundation, and Hanni M. Fakhoury, San Francisco, California, for Amicus Curiae Electronic Frontier Foundation.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

DOOLEY, J.

¶ 1. In this complaint for extraordinary relief, we are asked to determine whether a judicial officer has discretion to attach ex ante or prospective conditions to a search warrant. The State petitions this Court to strike ten such conditions pertaining to the search of a personal computer, seized by police as part of an identity theft investigation. The State contends that the conditions exceed the judicial officer's authority under the Fourth Amendment and unnecessarily impede law enforcement's ability to investigate crime. Two amici have filed briefs in opposition to the State's petition, and they argue that the conditions are a valid exercise of the judicial officer's authority and are necessary to protect personal privacy. We grant the petition in part and strike the condition abrogating the plain view doctrine. Because we conclude that the remaining conditions serve legitimate privacy interests, the petition is otherwise denied.

¶ 2. In December 2010, a Burlington Police Detective was assigned to investigate an identity theft case transferred from the New York State Police. In conjunction with the investigation, he applied for a warrant to search a home at 145 Pleasant Avenue in Burlington. The affidavit submitted in support of the warrant recites the following facts.

¶ 3. The crime was reported by a resident of New York. In an interview with the Vermont detective, the victim stated that someone had fraudulently attempted to apply for credit cards online using his name and identifying information and to change his address with the United States Postal Service. Based on this information, the detective contacted one of the banks involved and obtained the internet protocol (IP) ¹ address that was used to submit one of the fraudulent credit card applications. The bank also provided the information submitted in the online application, which listed the victim's true name and social security number, but contained other information that was false, including an address of 145 Pleasant Ave., Burlington, Vermont, and an electronic mail address of gulfields@ aol. com. Both police and motor vehicle records indicate that 145 Pleasant Avenue is occupied by Eric Gulfield.

¶ 4. From the internet service provider, the detective learned that at the time the fraudulent application was submitted online, the IP address used belonged to a subscriber listed at 134 Pleasant Avenue. The detective visited the location and observed that there was an open (unprotected by a password) wireless internet (WIFI) connection coming from 134 Pleasant Avenue. He determined that the signal was likely strong enough to access from 145 Pleasant Avenue. The detective interviewed the resident of 134 Pleasant Avenue and obtained permission to access the router log to determine if other computers had used the wireless connection. From this log, the detective discovered that the previous month the router was accessed several times by a computer with an assigned name of GulfieldProp–PC.

¶ 5. Based on the foregoing information, the detective applied for a warrant to search 145 Pleasant Avenue for “evidence of the crime of Identity Theft.” The application requested permission to seize records “in whatever form they are found,” including any computers or other electronic medium. An attachment described the property to be seized in more detail, including:

Any computers or electronic media, including hard disks, magnetic tapes, compact disks (“CD”), digital video disks (“DVD”), cell phones or mobile devices and removable storage devices such as thumb drives, flash drives, secure digital (“SD”) cards or similar devices, floppy disks and zip disks (hereinafter “MEDIA”) that were or may have been used as a means to commit the offense described on the warrant.The application did not list one person as the target of the search; rather, it noted that multiple people were living in the target address and requested permission to seize electronic devices regardless of ownership. As justification, the affidavit explained that electronic information may be easily moved between different computers and other electronic storage devices.

¶ 6. Reciting general information about the large volume of information stored on a computer, the technical expertise required to search data that can be hidden, password protected, or encrypted, and the time involved in such a search, the application requested authorization to seize any computers for search off-site. The application further stated:

In some cases, it is possible for law enforcement officers and forensic examiners to conduct carefully targeted searches that can locate evidence without requiring a time-consuming manual search through unrelated materials that may be commingled with criminal evidence. In other cases, however, such techniques may not yield the evidence described in the warrant. Criminals can mislabel or hide files and directories, encode communications to avoid using key words, attempt to delete files to evade detection, or take other steps designed to frustrate law enforcement searches for information. These steps may require agents and law enforcement or other analysts with appropriate expertise to conduct more extensive searches, such as scanning areas of the disk not allocated to listed files, or peruse every file briefly to determine whether it falls within the scope of the warrant. In light of these difficulties, the [applicant] intends to use whatever data analysis techniques appear necessary to locate and retrieve the evidence ....

¶ 7. The judicial officer reviewing the request granted a warrant to search the residence and to seize electronic devices to be searched at an off-site facility for as long as reasonably necessary. In a separate order, however, the judicial officer stated only that “[t]he application to search the computer belonging to Eric Gulfield is granted,” and attached conditions: (1) restricting the police from relying on the plain view doctrine to seize any incriminatory electronic record not authorized by the warrant—that is, “any digital evidence relating to criminal matters other than identity theft offenses”; (2) requiring third parties or specially trained computer personnel to conduct the search behind a “firewall” and provide to State investigatory agents only “digital evidence relating to identity theft offenses” ²; (3) requiring digital evidence relating to the offenses to be segregated and redacted from surrounding nonevidentiary data before being delivered to the case investigators, “no matter how intermingled it is”; (4) precluding State police personnel who are involved in conducting the search under condition (2) from disclosing their work to prosecutors or investigators; (5) limiting the search protocol to methods designed to uncover only information for which the State has probable cause; (6) precluding the use of specialized “hashing tools” and “similar search tools” without specific authorization of the court; (7) allowing only evidence “relevant to the targeted alleged activities” to be copied to provide to State agents; (8) requiring the State to return “non-responsive data” and to inform the court of this action; (9) directing police to destroy remainingcopies of electronic data absent judicial authorization otherwise; and (10) requiring the State to file a return within the time limit of the warrant ³ to indicate precisely what data were obtained, returned, and destroyed. Law enforcement conducted a search of the premises and seized, but did not search, a personal computer and an iPad.⁴

¶ 8. The State then filed a motion for extraordinary relief in this Court requesting that the Court strike the ex ante conditions from the warrant. In support of its petition, the State argues that the judicial officer lacked authority to impose ex ante restrictions on the search; that the conditions are unnecessary and impede legal development in the area of computer searches; and that the conditions impermissibly impede effective law enforcement investigation. The Defender General and the American Civil Liberties Union (ACLU) ⁵ submitted briefs as amici curiae in opposition to the State's petition.⁶ The ACLU argues that computers are fundamentally different from paper records or filing cabinets because of the vast volume of personal data stored in a computer and due to a computer's unique ability to retain hidden and deleted information and to act as a portal to other remote storages of information. To protect privacy, the ACLU argues that the Fourth Amendment demands more stringent requirements to search electronic devices. The Defender General argues that such conditions are key to protecting privacy under Article 11 of the Vermont Constitution. Therefore, both amici contend that the conditions are necessary and not beyond the judge's discretion in issuing a warrant.

I.

¶ 9. We first must address the jurisdictional grounds for this action. This is an original jurisdiction case instigated by the...