In United States v. Comprehensive Drug Testing, Inc. (9th Cir. Aug. 26, 2009), the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, limited the scope of searches for digital evidence by defining a set of procedures to be followed by law enforcement in requesting and executing such searches. In particular, the Ninth Circuit constrained law enforcement reliance on the plain view exception to the Fourth Amendment warrant requirement in the case of searches for digital evidence. Two U.S. Circuit Courts of Appeal, the Seventh and the Fourth, recently issued rulings diverging from the approach taken by the Ninth Circuit. In United States v. Mann (7th Cir. Jan. 20, 2010), the Seventh Circuit expressly rejected the Ninth Circuit approach, ruling that a police officer did not exceed the scope of a warrant authorizing a search for images taken surreptiously of women in locker rooms when he electronically scanned, indexed and catalogued all files on the computer into viewable format. In United States v. Williams, the Fourth Circuit held that even if a warrant authorizing the seizure of evidence of a harassment crime did not encompass images of child pornography, the seizure of those images fell within the plain view exception to the warrant requirement, because the warrant “impliedly authorized officers to open each file on the computer and view its contents, at least cursorily, to determine whether the file fell within the scope of the warrant’s authorization.”

United States v. Mann, 592 F.3d 779 (7th Cir. Jan. 20, 2010) Download PDF

United States v. Williams, 592 F.3d 511 (4th Cir. Jan. 21, 2010) Download PDF