Recently the Ninth Circuit Court of Appeals addressed the scope of a search warrant for digital devices and found that the warrant violated the Fourth Amendment in United States v. Holcomb. In 2020, John Holcomb was investigated for sexual assaulting J.J., which he insisted was consensual. As part of the investigation, law enforcement learned that Holcomb had a surveillance system that would show his innocence. Initially, Holcomb consented to a search of his computer for the video but later withdrew his consent. In response, law enforcement obtained a search warrant for the computer. That search warrant authorized law enforcement to search five categories of evidence on the computer:
- “Evidence of communications to or from J.J. and/or between JOHN HOLCOMB. [ ] This communication includes but is not limited to voicemails/audio recordings, SMS, MMS, emails, chats, social media posts/online forums, contact lists and call logs from June 1, 2019 to current.
- Surveillance video or images depicting JJ or JOHN HOLCOMB and any other surveillance video or images from Jan[uary] 26th 2020 to current.
- Any location data including GPS coordinates from Jan[uary] 26th 2020 to current.
- User search history from the devices to include but not limited to searched words, items, phrases, names, places, or images from Jan[uary] 26[th] 2020 to current.
- Files[,] artifacts or information including but not limited to[ ] documents, photographs, videos, e-mails, social media posts, chats and internet cache that would show dominion and control for the devices.
Importantly, the fifth category had no time frame limitations. During the initial search, law enforcement found the video showing the encounters between Holcomb and J.J. on the day of the alleged assault. That video supported Holcomb’s claim that the encounter was consensual.
The crime lab, however, continued searching the computer’s hard drives. This search uncovered other videos of sexual encounters including three videos that appeared to be child pornography—including one of Holcomb raping a minor. Based on this discovery, another warrant was obtained to search the computer. Holcomb was charged with rape in state court but the charges were dropped after he filed motions to suppress challenging the search warrants. Eventually, Holcomb was indicted in federal court for child pornography, where he also challenged the search warrant.
On appeal, the Ninth Circuit held that the search warrant violated the Fourth Amendment because it was both overbroad and lacked particularity. Under the Fourth Amendment, search warrants must be supported by probable cause and particularly describe what is to be searched. This means the warrant has to be limited so that law enforcement can only search to the extent that they have probable cause and that the warrant clearly state what is to be searched.
As the Court explained, the dominion and control provision (category 5) of the warrant had multiple problems. First, there was no basis in the warrant to make dominion and control a relevant factor. There was no dispute that Holcomb owned the computer or any suggestion that the computer had been tampered with. In addition to the relevancy problem, dominion and control provision was so overbroad and so lacking in particularity that it turned the search warrant into a general warrant—which is prohibited by the Fourth Amendment. The warrant had no time frame or type of evidence limitations that would give it the required specificity.
The Court made clear that time frames are not always required for dominion and control provisions. But when it is clear that law enforcement had a specific date and put timeframes on the other search provisions, there needs to be a reason why the dominion and control provision lacks a timeframe. Without a timeframe or limited scope of files to search, what the dominion and control provision functionally did was allow law enforcement to search every single one of the thousands of files on Holcomb’s computer just in case one of those files had anything that supported the idea that Holcomb owned and controlled the computer. As a result, the warrant was so general that it violated the Fourth Amendment and this violation tainted the investigations that followed.
Critically, the Ninth Circuit held that this violation was not salvaged by the good faith exception to the Fourth Amendment. Under the good faith exception, suppression of illegally obtained evidence isn’t required when law enforcement obtain and execute a warrant in objectively reasonable reliance on the warrant. In other words, as long as the officers acted in reasonably and in good faith, illegal searches are fine. Here, the Ninth Circuit rejected the government’s arguments about good faith. While the Ninth Circuit had not previously invalidated a search warrant exactly like the flawed warrant in this case, the Court’s previous Fourth Amendment decisions had clearly explained the importance of timeframes in search warrants to ensure the required particularity.
So what exactly does this all mean? It means that when law enforcement knows that an alleged crime was committed on day X and that they believe that there may be evidence of the crime on the phone or computer belonging to the person accused of the crime, law enforcement cannot get a search warrant that allows them to search the entire phone or computer. They may be able to search the phone or computer for evidence within a week or month before and after the crime, but only if they can show probable cause to believe that evidence of the crime might be found within that time period. A search of the entire phone or computer without any limitations violates the Fourth Amendment because that is a general search—which was what the Fourth Amendment was designed and intended to prohibit.
