Computer Search warrants

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Drafting warrant applications and proposed warrants. Several practices should be followed when drafting search warrant applications and proposed search warrants for digital devices. Include digital-specific language. The Fourth Amendment requires that a warrant describe the place to be searched with particularity. If a warrant identifies a physical location, such as a suspect’s home or office, without specifically mentioning digital devices that may be present, there may be some doubt about the sufficiency of the warrant to authorize the search of the devices. Several courts have ruled that such a warrant is adequate, because a warrant authorizing the search of a particular location for a particular item generally authorizes the search of any container at the location that might reasonably contain the evidence sought, and digital devices are containers for information. So, for example, a warrant authorizing the search of a home for records of drug sales, lists of drug customers, and the like would allow the search of any drawer or box within the home in which the records could reasonably be found, and the search of any computer or cell phone that could contain such records. However, a few courts have suggested that digital devices are different and normally may be searched only if specifically permitted by the warrant. Therefore, a cautious officer who anticipates needing to examine digital devices should note that fact in the application and provide for it in the proposed warrant. Officers should also seek authorization to seize manuals, power cables, and passwords associated with digital devices, as not having these items may make a forensic search difficult or even impossible. Describe the items to be seized in as much detail as reasonably possible. The Fourth Amendment requires that a warrant describe the items to be seized with particularity. In most cases involving digital devices, the devices themselves are incidental to the true object of the search, which is the information contained on the devices. Thus, a warrant application should describe the files or information sought, not merely the devices, and should do so as specifically as reasonably possible. At a minimum, it should link the material sought to a specific offense. A court may view as overbroad a warrant that authorizes the seizure of all digital devices that belong to a suspect but is likely to approve of a warrant that authorizes the seizure of all digital devices that belong to the suspect and that could contain evidence of the specific crime under investigation. In an appropriate case, the description of the items to be seized could be further tailored by limiting the files to be examined to files created or accessed by a specific user, or to files created or accessed on or after a specific date.