Editor’s note: This article is the first in a three-part series.

In In re Application for Search Warrant, No. 2010-479 (December 14, 2012), the Vermont Supreme Court upheld the issuance of a search warrant for a residence that contained numerous "ex ante or prospective conditions" structuring how law enforcement was to conduct the search of computers found therein.

Most of the opinion is given over to the question of whether the issuing magistrate could, under the Fourth Amendment, impose such conditions (no suspense here: the court said it could). The more interesting questions are whether those conditions will eliminate the evil of allowing, in essence, what the court sees as a general search, and whether those conditions can, in practice, work.

Probable Cause and the Warrant Conditions

Burlington, Vt., police investigated a complaint of identity theft. The complainant stated that someone had applied for credit cards using the victim’s name and identifiers and had tried to change the victim’s address with the United States Postal Service. The bank provided the detective with the information submitted in the online credit card application, which listed the victim’s true name and Social Security number but contained other information that was false, including an address of 145 Pleasant Ave., Burlington, and an email address of gulfields@aol.com. The detective also obtained the Internet protocol (IP) address used to submit the online application, i.e., the address assigned at the time to the computer used to submit the application.

The Internet service provider identified the user of the IP address, at the time the fraudulent application was submitted online, as a subscriber listed at 134 Pleasant Ave. The detective observed at that location a wireless Internet connection coming from 134 Pleasant Ave. unprotected from usage by nearby users. With the permission of the resident at 134 Pleasant Ave., the detective obtained the log of router users, which revealed that in the previous month, the router was accessed several times by a computer with an assigned name of GulfieldProp-PC. Both police and motor vehicle records indicated that 145 Pleasant Ave. was occupied by Eric Gulfield.

The detective applied for a warrant to search 145 Pleasant Ave. for "evidence of the crime of identity theft." The application requested permission to seize records "in whatever form they are found," including any computers or other electronic medium. An attachment described the property to be seized in more detail, including any "computers or electronic media," expansively defined, "that were or may have been used as a means to commit the offense described on the warrant." The warrant noted that many people lived at the target address and requested permission to seize electronic devices regardless of ownership, reasoning that "electronic information may be easily moved between different computers and other electronic storage devices."

The warrant application further requested authorization be granted to seize any computers for search off-site. It pointed to the "large volume of information stored on a computer, the technical expertise required to search data that can be hidden, password-protected or encrypted, and the time involved in such a search," and noted that while in some cases, "it is possible for law enforcement officers and forensic examiners to conduct carefully targeted searches that can locate evidence without requiring a time-consuming manual search through unrelated materials that may be commingled with criminal evidence," such search techniques may not work in other cases, because files can be mislabeled, hidden, encoded, deleted or otherwise manipulated by criminals "to frustrate law enforcement searches for information."

In such cases, "more extensive searches," such as searching in areas of the hard drive "not allocated to listed files" (typically referred to as "unallocated space"), looking briefly at every file or, generally, "whatever data analysis techniques appear necessary to locate and retrieve the evidence" would have to be taken in a laboratory.

The magistrate recognized that the computer search would have to be done off-site and so authorized that. However, the magistrate imposed the following conditions:

• The police were restricted from relying on the plain view doctrine to seize any incriminating evidence "relating to criminal matters other than identity theft offenses."

• Third parties or specially trained computer personnel had to conduct the search behind a "firewall" and provide to state investigatory agents only "digital evidence relating to identity theft offenses."

• Digital evidence relating to the offenses had to be "segregated and redacted from surrounding non-evidentiary data before being delivered to the case investigators," "no matter how intermingled" it was.

• The "third parties or specially training computer personnel" doing the analysis could not disclose their work to prosecutors or investigators.

• Those analysts could use only "methods designed to uncover only information for which the state" had probable cause.

• Those analysts could not use "specialized ‘hashing tools’ and ‘similar search tools’" without specific authorization of the court.

• Those analysts could copy and provide to the agents "only evidence ‘relevant to the targeted alleged activities.’"

• At the conclusion of the analysis, the state had "to return ‘non-responsive data’ and to inform the court of this action."

• At the conclusion of the analysis, the analysts had to destroy the "remaining copies of electronic data absent judicial authorization otherwise."

• The state had to file a return "to indicate precisely what data was obtained, returned and destroyed."

Police executed the warrant and seized a PC and an iPad. The state then filed a motion for extraordinary relief in the Vermont Supreme Court, requesting that the court strike the ex ante conditions. The state made three general arguments: (1) the magistrate lacked authority to impose ex ante restrictions on the search; (2) the conditions were unnecessary and impeded "legal development in the area of computer searches"; and (3) the conditions impermissibly impeded "effective law enforcement investigation."

The state’s defender general and the ACLU (on behalf of the Electronic Frontier Foundation as well as itself) submitted amici curiae briefs in support of the conditions. The ACLU argued that computer searches had to be treated differently than those where paper documents are stored, "because of the vast volume of personal data stored in a computer," as well as because of "a computer’s unique ability to retain hidden and deleted information and to act as a portal to other remote storages of information." The defender general argued that the conditions were "key" to protecting privacy rights not just under the Fourth Amendment but also under Article 11 of the Vermont Constitution.

The Court Frames the Questions

The court noted that the instant matter differed from cases it had previously resolved in that prior cases dealt with whether evidence seized had been done so in violation of a "constitutional mandate," while here the question was whether the magistrate lacked the authority to impose the aforementioned conditions. The court further made it clear that its analysis was not based upon any additional right of privacy guaranteed by the state constitution, but, rather, simply upon the Fourth Amendment.

The court saw the principal question before it as "whether the warrant-issuing magistrate had the authority to issue the specific search instructions he did." It also stated that it needed to address the challenge, by the state, to the "imposition (or effect) of the instructions in general," stressing that no challenge had been made that the conditions were "inappropriate in this case," so that it would leave "questions about the nature and extent of the magistrate’s discretion in this area to another day."

A Heavyweight Fight for a Small Prize

Because I am trying to perform legal analysis and not write a good mystery, I will begin this section by giving away the conclusion. I believe that the question of whether the magistrate had the authority under the Fourth Amendment to impose the conditions is easily and simply answered: of course it did. I will explain my thinking and then review the court’s.

The Fourth Amendment has three requirements for a search warrant: (1) that it contain a recitation of probable cause, sworn to or affirmed; (2) that it particularly describe "the place to be searched"; and (3) that it also particularly describe the "the person or things to be seized." It does not explicitly require that law enforcement obtain a search warrant to conduct a search, but, rather, simply requires that "the people" be protected from "unreasonable searches and seizures."

The requirements pertaining to searching and those pertaining to the issuance of a warrant are separately stated in independent clauses. Legal scholars have long reasoned that the warrant requirements were inserted not to require that law enforcement obtain warrants prior to searches (consider the practical difficulty of doing that in 1789 — the distance between law enforcement and magistrates; the illiteracy of law enforcement officers, etc.), but, instead, to ensure that if a magistrate did issue a search warrant and, importantly, thereby insulated law enforcement from civil suit on the ground that the search was conducted with court approval, that warrant had to justify the search.

Nothing, then, in the Fourth Amendment requires that a magistrate review probable cause for the search prior to its conduct. The warrant "preference" or "presumption," and the corresponding list of "warrant exceptions" — exigent circumstances, search incident to arrest, etc. — are a creation of, relatively speaking, recent Fourth Amendment jurisprudence interpreting the language protecting against "unreasonable search and seizure."

There should, then, be no more objection to imposing ex ante conditions or instructions upon the execution of a warrant, under the "reasonableness" requirement, than there can be to the imposition of the warrant requirement itself. Indeed, the court notes that the imposition of ex ante conditions has been a part of Fourth Amendment jurisprudence for quite some time. Long-accepted examples include "no-knock" entry warrant provisions, state and federal rules setting forth when a warrant may be served (both what hours of the day and how long after issuance may law enforcement have before authority to execute the warrant expires), and "minimization" requirements, requiring those executing a wiretap to minimize listening to conversations that are not the object of the interception.

The court concluded, as I have, that the power to impose ex ante conditions upon the execution of a warrant is inherent in the Fourth Amendment, and did so rather quickly.

In the second part of this series, we will begin looking closely at the ex ante search conditions imposed.

Leonard Deutchman is general counsel and administrative partner of LDiscovery, a firm with offices in New York City, Fort Washington, Pa., McLean, Va., Chicago, San Francisco and London that specializes in electronic digital discovery and digital forensics.