Federal Criminal Appeal Digest - 4th Amendment

United States v. Womack

In United States v. Womack, Mr. Womack asserts that the district court should have suppressed evidence seized at his home because the affidavit supporting the search warrant lacked sufficient information to support a finding of probable cause.^[1] An affidavit is insufficient if it contains mere conclusory statements that do not give the magistrate judge a basis for making a judgment.^[2] The search warrant was issued based on information from a confidential informant (CI).^[3] The affidavit stated that the informant purchased crack cocaine from Womack within the past 72 hours.^[4] A District Judge found probable cause and signed the warrant.^[5] Under the exclusionary rule, evidence seized as the result of an illegal search is inadmissible. ^[6] However, the court noted that this evidence would be admissible under the good faith exception to the exclusionary rule because the officers acted in reasonable reliance on a search warrant issued by a neutral magistrate.^[7]

Womack challenged the affidavit on the grounds that it only briefly describes the attesting officer’s reasons for believing that the informant was telling the truth.^[8] When the police rely on a CI, they must demonstrate the CI’s “veracity” and “basis of knowledge.”^[9] Veracity can be shown if the CI has provided truthful and reliable information in the past and where the level of detail in the information shows that the CI is unlikely to be lying.^[10] At a suppression hearing, the attesting officer revealed he had never worked with the informant and he did not know how many times the informant had worked for the drug task force in the past.^[11] The court found that since there was no independent corroboration of the informant’s information, the police must establish her veracity.^[12] Nonetheless, the signing judge found probable cause and the district court affirmed stating “the affidavit would have benefited from additional details” and the officer “could have aided the issuing judge by providing more specific information about the CI’s past work.”^[13]

The court further reasoned that even if it found that the affidavit failed to establish probable cause, the officer did not act in bad faith by providing false information or that the judge merely “rubber stamped” the warrant without proper review.^[14] In that case, suppression would be warranted only if the affidavit “was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”^[15] The officer was given the information about the CI from his commander and had no reason to doubt his commander’s factual claim. Therefore, the task force was reasonable in relying on the signed search warrant.^[16]



U.S. v. Comprehensive Drug Testing, Inc.

The investigation of the Bay Area Lab Cooperative ("Balco") and its alleged distribution of illegal steroids to professional baseball athletes began in August 2002 and, over the following several years, produced evidence--including grand jury testimony--establishing probable cause to believe that at least ten major league baseball players received illegal steroids from Balco. ^[17] The government appeals from three separate adverse orders requiring the government to return property seized from Comprehensive Drug Testing, Inc. in Long Beach, California and Quest Diagnostics, Inc. in Las Vegas, Nevada and an order to quash subpoenas related to a grand jury sitting in San Francisco.^[18]

The government served a grand jury subpoena on Major League Baseball ("MLB") seeking drug testing information for eleven players who had connections to Balco.^[19] MLB responded that it had no such information.^[20] Thinking that because CDT and Quest had tested urine samples, those companies rather than MLB would possess the testing records and samples, the government issued subpoenas seeking drug testing information for all MLB players to CDT and Quest, and both resisted.^[21] The government then issued new narrower subpoenas relating to only 11 players with Balco connections.^[22] The MLB responded by indicating their intention to quash. Search warrants authorizing the seizure of drug test records and specimens for ten named Balco-connected players, as well as "[a]ll manuals, pamphlets, booklets, contracts, agreements and any other materials detailing or explaining" CDT's or Quest's "administration of Major League Baseball's drug testing program" were then issued.^[23] The warrants also authorized the search of computer equipment, computer storage devices, and--where an on-site search would be impracticable--seizure of either a copy of all data or the computer equipment itself. "[L]aw enforcement personnel trained in searching and seizing computer data" (designated "computer personnel") were responsible for choosing the appropriate course of action to capture the electronic data sought.^[24] If seizure of all data or equipment was necessary, "appropriately trained personnel" would review the data, retaining the evidence authorized by the warrant and designating the remainder for return.^[25]

During the search, a CDT director identified a computer directory containing all of the computer files for CDT's sports drug testing programs.^[26] This directory, labeled as the "Tracey" directory, contained hundreds of files.^[27] Agents copied the entire directory and removed the copy for later review at government offices because of the time and intrusiveness that would be involved in searching the huge directory on site.^[28] The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named Balco players, intermingled with positive results for twenty-six other players.^[29]

Within these directories, there were files authorized by magistrate judges for seizure, including the master file of positive drug test results. Using information found in the Tracey directory, the government applied for new search warrants to seize all specimens and records relating to the over-one hundred non-Balco players who had tested positive for steroids and those warrants were issued.^[30]

The Players' Association filed motions under Federal Rule of Criminal Procedure 41(g) for return of all property seized.^[31] The motion was granted and the government was ordered to return all specimens seized from Quest and all notes and memoranda compiled by agents who reviewed the evidence, other than those pertaining to the ten Balco players named in the original search warrant.^[32]

The lower court found that "[t]he government callously disregarded the affected players' constitutional rights" and that the government unreasonably refused "to follow the procedures set forth in Tamura," with regard to the intermingled records.^[33] The government's suggestion that the documents were seizable under the plain-view exception was rejected and the player’s motion was granted.^[34] The Players' Association also argued that the government used the search warrants for the records of the ten named Balco players as a pretext to seize the records of other MLB players.^[35]

The appeal was for the purpose of reviewing the granting of the 41(g) motions. Although several issues of alleged government misconduct and fourth amendment violations are addressed, perhaps most interesting is the problem of intermingled records on computers. The computer era adds new complexity to the test of reasonableness under the Fourth Amendment. Although the government may have a warrant for only specific information that may be found on a computer, agents often seize entire files or indeed, the entire computer.
The lower court found the government’s actions egregious: One of the three district court judges who rejected the government's argument summarized it best, stating: "What happened to the Fourth Amendment? Was it repealed somehow?"^[36]
The majority addresses the seizure of intermingled documents under the reasonableness standard of the Fourth Amendment. Reasonableness can be especially difficult to define in the computer context, given the well-known "difficulties of examining and separating electronic media at the scene."^[37] In United States v. Beusch , the court addressed a motion to suppress seized evidence consisting of ledgers containing items covered by the search warrant intermingled with items not covered by the search warrant.^[38] The Beusch court concluded that no Fourth Amendment violation occurred when agents seized "single files and single ledgers, i.e., single items which, though theoretically separable, in fact constitute one volume or file folder."^[39]
Three years later, the court addressed the seizure of sets of files.^[40] In Tamura, the court reviewed the conduct of officers executing a search warrant, which authorized seizure of three specific categories of records from a Los Angeles office.^[41] In that case, agents seized--without any limiting effort--files unrelated to the items mentioned in the search warrant.^[42] Unfortunately, the Tamura court did not answer a more difficult question: "Because seizable materials are seldom found neatly separated from their non-seizable counterparts, how much separating must police do at the scene to avoid taking items that are neither contraband nor evidence of criminal activity?"^[43] As the Hill court noted, the answer turns upon "reasonableness," a standard that offers little guidance to government agents so the Tamura court sought to give more concrete advice to help agents remain within the bounds of the Fourth Amendment.^[44] The court suggested where documents are so intermingled that they cannot feasibly be sorted on site, that the Government and law enforcement officials generally can avoid violating fourth amendment rights by sealing and holding the documents pending approval by a magistrate of a further search.^[45]
The dissent suggested that government officials should limit their computer searches to key words and that this approach would have allowed the government to select the relevant files on-site.^[46] Criticizing the government for "cop[ying] the entire directory" rather than "copying only the subdirectories that pertained to Major League Baseball," the dissent suggests that the government should have trusted CDT to point out the relevant files. ^[47]

The majority reasoned that the government had no reason to confine its search to "key words" such as the names of the baseball players because a limited search could easily have overlooked relevant documents.^[48]

The majority found that even though the agents seized too much evidence, the property should be returned only following a particularly egregious violation and that precedent offers no support for a full return of the intermingled evidence.^[49] Even though in this case it is probably too late, the court indicated that the government must comply with Tamura in that it may not retain or use the evidence after proper objections are raised, unless a magistrate subsequently reviews and filters the evidence off-site.^[50]
The majority held that the district court erred in ruling that FRCP 41g required return of all property and that the governments seizures were reasonable.^[51]
The dissenting judge, Circuit Judge Thomas states that the “scope of the majority's new holding in the digital age could not be greater; it removes confidential electronic records from the protections of the Fourth Amendment.” ^[52] He stated the holding conflicts with the procedural protections detailed in Tamura because under the majority's holding, a magistrate would be required to review the seized data for probable cause after seizure only if an aggrieved party made a motion.^[53] Even then, if the magistrate concluded that the irrelevant data was "co-mingled," the government would be entitled to retain the confidential medical records.^[54] He is concerned that under this holding “the government--without warrant or even a suspicion of criminal activity--may seize, retain, and view all confidential records in any electronic database on which private data responsive to a warrant resides.”^[55] Judge Thomas also reasons that the "plain view" doctrine has no application to intermingled private electronic data. ^[56]

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[1] United States v. Womack, No. 05-15218, WL 13836 (11th Cir. 2006).
[2] See Illinois v. Gates 462 U.S. 213, 239 (1983).
[3] Womack at 1.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at 2.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] See Brown v. Illinois, 422 U.S. 590, 610-11 (1975).
[16] Womack at 2.
[17] U.S. v. Comprehensive Drug Testing, Inc., Nos. 05-10067, 05-15006, 05-55354, 2006 U.S. Dist. WL 3782956 (9th Cir. 2006).
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id. at 2.
[24] Id.
[25] Id.
[26] Id. at 3.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id. at 4.
[35] Id.
[36] Id. at 20.
[37] Id. at 10 (citing United States v. Hill, 322 F.Supp.2d 1081, 1088 (C.D. Cal. 2004)).
[38] United States v. Beusch, 596 F.2d 871 (9th Cir.1979).
[39] Id. at 876-77.
[40] See United States v. Tamura, 694 F.2d 591 (9th Cir. 1982).
[41] Id. at 594
[42] Id. at 595.
[43] Comprehensive Drug at 1 (citing Hill at 1088).
[44] Id.
[45] Tamura, 694 F.2d at 595-96.
[46] Comprehensive Drug at 13.
[47] Id.
[48] Id.
[49] Id. at 14.
[50] Id. at 17.
[51] Id. at 20.
[52] Id. at 20.
[53] Id. at 21.
[54] Id.
[55] Id.
[56] Id.