Tuesday, March 6, 2012

Court orders suppression for evidence found two years after warrant was issued

In United States v. Salceda, 2012 U.S. Dist. LEXIS 28211 (C.D. Cal. 2012), the district court ordered suppression of evidence found in unlawful searches. Law enforcement obtained an original warrant to seize the defendant's digital devices for evidence related to child pornography. The warrant was executed and devices seized, but two years later, law enforcement sought a new warrant to "conduct a more complete search" of the devices. The warrant was denied and law enforcement then determined the second warrant was unnecessary. Defendant argued that the evidence obtained during the new search was unconstitutional.

The warrant contained the following language:
If, after conducting such an initial search [within 60 days from the date of the execution of the search warrant], the case agents determine that a digital device is an item to be seized or contains any data falling within the list of items to be seized pursuant to this warrant, the government will retain the digital device for further analysis; otherwise, the government will return the digital device.
The defendant argued that the "further analysis" language refers only to what is discovered during the 60 days rather than allowing "repeated searches of every part of the digital media." The court, noting the government's denied second warrant and ex parte application, found the language to be ambiguous and ordered suppression of the evidence.

: Professor Orin Kerr recently wrote a post on Volokh Conspiracy criticizing the Salceda analysis, suggesting (as he did in the comments of this post) that the proper consideration for the court is reasonableness, rather than the terms of the warrant.


  1. Isn't it erroneous for the Court to answer the question by reference to the condition on the warrant, and not the reasonableness of the search?

    1. The court's reasoning appears to have stemmed from a finding of ambiguity. The search could only be conducted with a warrant, and since it was ambiguous, it was stale at the point of the continued searching. That alone doesn't appear to have gotten the court to supression, though. The government's application for the second warrant was an acknowledgment of the ambiguity, which should be interpreted in the defendant's favor. Essentially, the court found that the government had limited its entire investigation to 60 days and agreed at application that any further investigation was unconstitutional. This interpretation, of course, seems ridiculous.

      The magistrate had denied the second warrant, finding "there was no new evidence giving rise to probable cause to issue a second search warrant." (Although images of child pornography had, in fact, been found since the first warrant.) The government shot themselves in the foot when they asked for the second warrant.

      So your suggestion is an excellent point. And it seems right - the issue should have been whether the search was reasonable. Following the opinions like State v. Miller (429 N.W.2d 26 (S.D. 1988)) and State v. Petrone (468 N.W.2d 676 (Wis. 1991)), it appears as though the continued searching was not a second search and should be proper.

      The language of the warrant also doesn't really appear to prevent further action. The sentence construction makes it seem like it only applies to whether and when the government must return the digital devices. If no child pornography had been found and the devices had been returned, a second warrant would be needed to re-seize them. As they were properly obtained under this provision, the continued investigation is reasonable.