Ohio’s Supreme Court is beginning to get a reputation for aggressively protecting Fourth Amendment rights in the digital age. Six years ago in State v. Smith it held that police officers may not search a cell phone incident to an arrest, foreshadowing the United States Supreme Court’s Riley decision by five years. Today the Court released a decision which set out strict requirements for law enforcement officials who are seeking search warrants for computers. The Court held that the search warrant in question lacked particularity because it essentially authorized a limitless search of the defendant’s computer.
In the case, State v. Castagnola, the defendant was initially being prosecuted for selling alcohol to a minor. He then took the ill-advised step of egging the prosecutor’s car to show his displeasure with the case. He then took an even less-advised step and bragged about the egging to a friend, first by text and then in person. The “friend” ended up being a police informer, who was wearing a wire at the time of the defendant’s verbal confession. The police then obtained a search warrant and searched the defendant’s home (including his computer) for evidence of the egging incident. Instead, they found evidence of child pornography. The defendant was ultimately convicted of the child pornography charge.
The issue at the Ohio Supreme Court was two-fold:
First, the defendant told the police informant that he found the prosecutor’s address by tracing him through a parking ticket the prosecutor had received a few years earlier. In the detective’s affidavit seeking a warrant, the detective erroneously said that the defendant had mentioned that he found the prosecutor’s address after conducting an “online” search–thus supporting the detective’s request to search the defendant’s computer in order to find evidence of the search. But the defendant in fact never mentioned how he searched for the prosecutor. The detective had inferred that the search occurred online, but the Court held that such an inference was not strong enough to rise to the level of probable cause that the defendant had used a computer, noting that “[a]lthough we are in the computer age, records of court activity still exist in paper form and are available to the public in clerk of courts’ offices around the state.” In other words, even though the defendant had admitted that he had searched through court records for the prosecutor’s address, the likelihood that he did so using a computer does not suffice to establish probable cause.
Second, the warrant’s language, which copied the language from the detective’s affidavit, authorized the police to search:
Records and documents either stored on computers, ledgers, or any other electronic recording device to include hard drives and external portable hard drives, cell phones, printers, storage devices of any kind, printed out copies of text messages or emails, cameras, video recorders or any photo imaging devices and their storage media to include tapes, compact discs, or flash drives.
The Ohio Supreme Court noted that this language violated the Fourth Amendment’s particularity requirement because it did not include any “limitation on what records or documents” were allowed to be searched. Event though the warrant later specified that any evidence that was recovered was to be used as evidence in a retaliation and criminal damaging case, the warrant was still overly broad. Thus, the evidence should have been excluded–which almost certainly means that the child pornography case will now be dismissed.
The Court’s first conclusion seems a bit strained–is it really feasible to think that the defendant actually went to the county clerk’s office in person to look up the prosecutor’s old parking ticket? An inference that the defendant conducted an online rather than a physical search seems not only reasonable (and thus sufficient to support probable cause) but almost certain.
But the Court’s second conclusion is surely correct–courts are already struggling with how to draft warrants in order to properly limit searches of computers, and a broad warrant that permits the police to search through every digital file on every digital device does seem overbroad. Indeed, the law enforcement technician gave a somewhat weak explanation of why she was looking at picture files when she was allegedly looking for evidence of a search for the prosecutor’s court files. (She explained that she “went to the images [folder] to find images associated with court websites.”) On this point, at least, the Ohio Supreme Court’s message is clear: narrow your computer search (and your language in the search warrant) to items that are related to the crime you are investigating.