Federal Magistrate Judges Are “Revolting” Against Overbroad Search Warrant Requests for Electronic Evidence

Cloud_computing-1.jpgA federal magistrate judge has denied a request for a search warrant for electronic data stored by the internet company Google. In re [REDACTED]@gmail.com (“Redacted“), No. 5:14-mj-70655, order (N.D. Cal., May 9, 2014). In what legal observers are calling “the Magistrates’ Revolt,” low-level federal judges are denying requests by law enforcement officials for search warrants covering a broad range of data stored by third-party providers of internet and mobile communications services.

The magistrate who issued the decision in Redacted, Judge Paul Grewal, drew a distinction between requests for search warrants covering electronic data stored on physical media in a suspect’s possession, and data stored on the third-party servers known as the “cloud.” The warrant application consisted of three parts. The first part provided the background of the case and the allegations supporting probable cause. The second part identified the property to be searched as a specific email account hosted on servers located at Google’s headquarters in California. It did not include any date restriction on what data was to be searched. The third section described the information in the account that the government wanted Google to disclose, followed by the information within that set of data that the government intended to seize.

Under the Federal Rules of Criminal Procedure, an application for a search warrant “must identify the person or property to be searched…[and] any person or property to be seized.” Fed. R. Crim. P. 41(e)(2)(A). In warrants seeking electronic evidence, many courts have held that police cannot feasibly conduct a thorough search of data stored on devices found at a person’s home, such as computers and cell phones at the site of the search. They have therefore allowed seizures of computers and other devices even if they were not specifically identified in the warrant application. Judge Grewal calls this a “seize first, search second” approach. Redacted, order at 2; citing United States v. Hill, 459 F.3d 966, 974-75 (9th Cir. 2005); United States v. Giberson, 527 F.3d 882, 887 (9th Cir. 2008).

In Texas, the Court of Criminal Appeals has held that police may search a safe on the premises covered by a search warrant, even if the safe is not one of the items described in the warrant, but that removing the safe from the premises for a later search would violate the Fourth Amendment. Texas v. Powell, 306 S.W.3d 761, 766-67 (Tex. Crim. App. 2010). At least one appellate court has held that a computer is not analogous to a safe in this regard, and that “feasibility and practicality” require removal of a computer for later search. Davis v. Texas, Nos. 10-10-00405-CR et seq., mem. op. at 5 (Tex. App.–Waco 2012).

Judge Grewal concluded that the request was too broad, largely due to the lack of date restrictions and of “any kind of commitment to return or destroy evidence that is not relevant to [the government’s] investigation.” Redacted at 6. The government, he noted, continued to apply the “seize first, search second” concept despite the different circumstances presented by “cloud” storage. Judge Grewal also noted that the government has brought similar requests before other magistrate judges, a practice known as “judge shopping” that, while not unlawful per se, is certainly not favored by the judiciary.

Michael J. Brown, a board-certified criminal defense attorney, has fought for the rights of west Texas defendants in criminal cases for over two decades. To schedule a confidential consultation to discuss your case and see how we can help you, please contact us today online or at (432) 687-5157.

More Blog Posts:

Police Need a Warrant to Search Cell Phones During an Arrest, Supreme Court Rules, Texas Criminal Lawyer Blog, July 28, 2014
Use of Facial Recognition Software and Other Biometric Technologies by Police Raise Fourth Amendment, Privacy Concerns, Texas Criminal Lawyer Blog, June 26, 2014
Cyber Crime Investigations Often Assisted by Incorrect Use of Anonymizing Technology, Texas Criminal Lawyer Blog, June 11, 2014
Photo credit: gsagri04 [Public domain, CC0 1.0], via Openclipart.