Seventh Circuit Clarifies Application of Fourth Amendment to Searches of Computer Hard Drives

seventh-circuit51While working as a life guard instructor, Matthew Mann covertly installed a video camera in a locker room in order to take footage of women changing their clothes.  After the camera was discovered and turned over to the authorities, police executed a search warrant at Mann’s home for “video tapes, CD’s or other digital media, computers, and the contents of said computers, tapes, or other electronic media, to search for images of women in locker rooms or other private areas.”  In connection with the search, police seized computers and an external hard drive from Mann.  Police later ran forensic software on this equipment that revealed the presence of child pornography, which formed the basis of a federal prosecution.

The district court denied Mann’s motion to suppress the images found on his hard drives.  Mann then pled guilty, but preserved the right to litigate his Fourth Amendment claim on appeal.  In United States v. Mann (No. 08-3041) (Rovner, J.), the Seventh Circuit affirmed.  Although the scope of the warrant was limited by its terms to a search for “images of women in locker rooms or other private areas,” the court held that police did not exceed the scope of the warrant when they collected and viewed Mann’s collection of child pornography. 

Three aspects of the court’s opinion strike me as significant.  First, the court approved the use of forensic software “to index and catalogue [] files into a viewable format,” even if the software has a feature that flags known child pornography files and police do not have a warrant to search for child pornography.  This seems to break with the Ninth Circuit, which recently admonished that “sophisticated hashing tools . . . that allow the identification of well-known illegal files . . . and similar search tools may not be used without specific authorization in the warrant.”  United States v. Comprehenisve Drug Testing, Inc., 579 F.3d 989, 999 (9th Cir. 2009).  To be sure, the Seventh Circuit did hold that files specifically flagged as known child pornography from Mann’s hard drve should not have been opened without a separate warrant.  However, the police were within the scope of the warrant they had when they opened the other files collected by the forensic software.

Second, the Seventh Circuit also declined to follow the Ninth Circuit’s rejection of the plain view doctrine in connection with searches and seizures of computers.  See Comprehensive Drug Testing, 579 F.3d at 998, 1006.

Finally, the Seventh Circuit interpreted United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), as narrowly limited to its particular facts.  In Carey, the Tenth Circuit held that police searching the defendant’s hard drive for evidence of drug dealing exceeded the scope of their warrant when they opened JPG files containing child pornography.  The Seventh Circuit distinguished Carey in two respects.  First, the warrant in Carey authorized a search solely for “documentary” evidence, whereas the warrant in Mann specifically mentioned “images.”  Second, the officer conducting the search in Carey admitted that he was not looking for evidence of drug dealing when he opened the JPG files, whereas the officer in Mann maintained that his intent throughout the search was to look for the evidence of voyeurism that was the focus of the warrant.  The intent of the officer conducting the search thus seems relevant now in determining whether the search remained within the scope of the warrant.

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