From DOJ-CCIPS: US v. CDT, 2010 WL 3529247 (9th Cir.). The Ninth Circuit issued a revised en banc opinion in United States v. Comprehensive Drug Testing. The 2009 en banc opinion had announced sweeping new rules for warrants to search computers, and those rules had a detrimental effect on law enforcement efforts. The revised opinion no longer contains those rules; they are now only in a concurring opinion joined by only 5 of the 11 judges on the en banc panel. Prosecutors in the Ninth Circuit can use the revised en banc opinion to renew discussions with magistrates about the appropriate procedures for issuing search warrants. The original opinion offered “guidance” that, while not explicitly mandatory, was widely interpreted as mandatory. The revised opinion, however, contains none of the problematic “guidance.” In particular, the revised opinion:
- no longer mentions a wall protocol, in which filter teams review material separate from case agents;
- no longer counsels magistrates to insist that the government waive reliance upon the plain view doctrine;
- no longer suggests that magistrates may order that the off-site review of “over-seized” data be performed by independent third parties not affiliated with the government;
- no longer suggests that warrants should contain time limits, at the expiration of which data must be returned to the defendant or destroyed;
- no longer imposes burdensome return requirements that differ from those in the amended Rule 41; and
- no longer suggests that warrants must contain search protocols that are designed to achieve only the purpose of separating data called for by the warrant from data not called for by the warrant.
However:
- The procedures mentioned above are now in a concurring opinion, authored by Chief Judge Kozinski and joined by four other judges. That concurring opinion suggests that the rules constitute a “safe harbor.” (For rejection of these procedures as a legally binding requirement, see US v. McNamara-Harvey, infra.)
- The en banc court still reads Rule 41(g) (motions for return of property) quite broadly, essentially permitting its use as a motion to suppress.
- While the opinion no longer counsels magistrates to insist that the government waive reliance upon the plain view doctrine, it does contain language that raises questions about the extent to which plain view applies in computer search cases.
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