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COMPUTER SEARCHES AND SEIZURES
CHALLENGES FOR INVESTIGATORS
By
John Gales Sauls
Special Agent
Legal Instructor
FBI Academy
An informant tells a detective preparing an affidavit for a
warrant to search a drug trafficker's home that the trafficker
is a "computer wiz" who keeps all financial records on a "50
megahertz 486." To trace the drug trafficking proceeds for
forfeiture purposes, the detective wishes to seize the financial
records.
A second officer is investigating a crime in which a
computer virus was introduced into a university's mainframe
computer, shutting down the school's computer operations for 48
hours. As a result of the officer's investigation, a computer
science student becomes a prime suspect. In order to search the
student's computer "account" on the school's mainframe for the
virus' computer code, the officer seeks a search warrant. He
also suspects the "account" to contain an article that the
student wrote on computer viruses.
These officers, in seeking to search for computerized
information, must contend with both statutory and constitutional
restraints that limit police authority. This article examines
the effect of these legal restraints on searches for computers
and computerized information and suggests strategies to ensure
the admissibility of evidence detected.
THE PRIVACY PROTECTION ACT OF 1980
In 1980, Congress enacted a statute to give special
protection to documentary materials prepared or gathered for
dissemination to the public. (1) The statute requires the
government to use a subpoena, rather than a search warrant, to
acquire documentary materials, unless one of the statute's
exceptions that permits the use of a search warrant applies. (2)
Although the statute specifically provides that its
violation is not grounds to suppress evidence, (3) it does provide
a civil remedy in Federal court against either the government
entity or individual officers involved in the search where a
search warrant is used contrary to its provisions. (4)
Because personal computers are used for word processing and
desktop publishing with increasing frequency, officers
contemplating use of a warrant to search for computerized
information should consider the potential application of this
statute. (5) When officers have reason to believe that the computer
stores information created or gathered for public dissemination,
they should make sure that one of the exceptions to the act's
prohibitions applies before a search warrant is used.
The exception most likely applicable permits the use of a
search warrant when there is probable cause to believe the
person possessing the materials sought "has committed or is
committing a criminal offense to which the materials relate...."
(6) If none of the act's exceptions apply, a subpoena should be
used to acquire the evidence.
DRAFTING THE APPLICATION AND SEARCH WARRANT
The fourth amendment protects the right of the people to be
"secure in their persons, houses, papers, and effects" against
unreasonable government intrusion. (7) This protection extends
to computers, which are effects, and to information processed
and stored by computers, which can be categorized as papers.
The constitutional demand on the officer seeking to search for
and seize a person's computer or computerized information is
that the search and seizure be reasonable. (8)
"Reasonableness" is generally best achieved with a valid
search warrant. (9) This is especially true when business or
residential premises, the most likely locations for computers,
must be entered to perform the search. (10)
The fourth amendment sets forth certain procedural
requirements that must be met for a valid warrant to be issued.
There must be a showing of probable cause, supported by oath or
affirmation, and the warrant must particularly describe the
place to be searched and the persons or things to be seized.
(11) The requirement of oath or affirmation raises no special
problems where computer searches are concerned; however, the
probable cause and particularity requirements pose unique
problems where computers are the search target.
ESTABLISHING PROBABLE CAUSE
The fourth amendment probable cause requirement has been
interpreted to command that before a search warrant is issued,
the government must set forth facts that would cause a
reasonable person to conclude that three factors are probably
true. Specifically, it must be probably true that a crime has
been committed, that evidence of the crime exists, and that the
evidence presently exists at the place to be searched. (12)
Crime Committed
Magistrates are familiar with the mechanics of how a murder
might be committed with a gun, but they may have difficulty
understanding how an embezzlement might be accomplished by means
of a computer. When computers are used to commit a crime,
officers need to detail how the suspect committed the crime,
primarily because the process involves unfamiliar technology.
(13) The problem becomes an educational one. (14)
Obviously, when seeking to convince a magistrate that a
crime has been committed in a novel manner, an officer should
explain the mechanics of the crime carefully and clearly. If
the officer wishes the magistrate to consider the officer's
interpretations of the facts, the officer must inform the
magistrate in the affidavit of the experience and training that
accredit these interpretations. (15)
An officer seeking to establish probable cause that an
unusual crime has been committed may also elect to use the
services of an expert. (16) The challenge for the officer is
providing sufficient details in layman's terms to familiarize
the magistrate with the mechanics of an unusual criminal
technique.
Evidence of the Crime Exists
A computer may be used as a tool to commit a crime and to
create and/or store records of crime. In order to acquire a
search warrant to seize both the computer and records, officers
need to establish factually the probability that each of these
things exists and the link between them and the criminal
activity. When facts establish the probability that a computer
was used to commit a crime, those same facts establish the
existence of the computer, as well as its link to the crime.
(17)
When an officer seeks to establish that computerized
records of criminal activity probably exist, the focus should be
on establishing the creation and retention of records rather
than the mechanism by which this was accomplished. (18) In the
past decade, computer use to create and store records has become
so pervasive that the concept of a document existing as binary
code imprinted magnetically or optically on a computer disk is
no longer novel. Consequently, when documents are the target of
the search, the process by which the suspect created the
documents need not be set forth for a magistrate in an
affidavit. The critical facts are those that demonstrate the
probability that records are being kept and that these records
are evidence of the criminal activity.
United States v. Falon (19) is illustrative of this point.
In Falon, investigators established probable cause that Falon
was operating a fraudulent loan advance fee scheme out of two
adjacent luxury apartments. They obtained a search warrant that
authorized the seizure of "borrowers' files; lists of borrowers;
banking and financial records; financial statements; advertising
records; correspondence, memoranda and documents relating to
loans, loan guarantees, potential loans and potential loan
guarantees; and sales literature and brochures." (20) Also
listed were "checkbooks; canceled checks; telephone records;
address indexes; message slips; mail, telex, and facsimile
records; calendars and diaries; memory typewriters; word
processors; computer disks, both hard and floppy; and other
electronic media devices, electronic storage media and related
software." (21)
Items on the first list, because of the clear link to the
fraudulent advance fee scheme set forth in the probable cause
statement, were held to have been properly seized under the
search warrant. (22) "Borrowers' files," for example, have a
clear relationship to a loan advance fee scheme.
Items on the second list were held to be insufficiently
linked to the alleged criminal activity, and their seizure was
held improper, causing them to be inadmissible as evidence. (23)
"Calendars and diaries" located in the search might as likely be
innocent and personal as criminal.
Factually linking, in the affidavit, the relationship of
the items to be seized to the alleged criminal activity is the
key. Had the warrant specified, for example, "calendars listing
events related to loan-making activity," the linking requirement
would have been satisfied for such items. Likewise, listing
"floppy disks containing documents related to making or
guaranteeing loans" would make such items validly subject to
seizure.
Evidence Present at the Search Site
An officer seeking to establish probable cause to search
must also factually establish the probability that the evidence
sought is presently located at the place to be searched. (24) At
times, having a computer or its records as the target of the
search may simplify meeting this requirement.
If a suspect used a computer to commit a crime
telephonically, it is also possible that the suspect set up the
computer to "answer" incoming calls. This allows other computer
operators to call it using their computer terminals and a
telephone.
When such an operation exists, an incoming call will be
answered with a tone called a "carrier." (25) When a particular
phone is answered with a "carrier," it seems reasonable for a
magistrate, informed of the carrier's significance in the
affidavit, to find that a computer and related equipment are
probably present at the telephone's location. (26)
When computerized records are sought, the magistrate should
consider that records, by their very nature, are created to be
kept for at least a minimum period of time. This fact, along
with the other facts presented, should be weighed in determining
whether the records are presently at the place to be searched.
(27) Although each case must be evaluated on its own facts, the
U.S. Supreme Court and lower courts have held that under
certain circumstances, it is reasonable to expect that records
seen 3 months previously will still be present at the location
where they were observed. (28)
SUFFICIENTLY PARTICULAR DESCRIPTIONS
The fourth amendment limits valid warrants to those
"particularly describing the place to be searched and the
persons or things to be seized." (29) This provision mandates
that a warrant authorizes only a search of a specific place for
specifically named items.
Coupled with the probable cause requirement, this provision
prevents general searches by ensuring that warrants describe a
discrete, defined place to be searched, describe only items
connected with criminal activity for which probable cause has
been established, and describe the items so definitely that it
removes from an officer executing the warrant the unguided
discretion of determining which items to seize. (30) It also
provides a signal of when to end a search, that is, when all
items named in the warrant have been located and seized or when
all possible hiding places for items not located have been
explored.
The "place to be searched" portion of the particularity
requirement has no special impact on computer searches.
However, the "things to be seized" portion has a significant
impact in seeking warrants to authorize the seizure of computers
and information processed by computers.
Describe the Computer System
The primary rule of particularity is to describe the items
to be seized as precisely as the facts allow. For example, when
a computer has been reported stolen, it is reasonable to expect
that the owner can provide a detailed description of the stolen
item. Therefore, if the object of the search is a stolen
computer, a detailed description, including make, model, and
serial number, if known, will probably be required.
When computer equipment is sought because it was an
instrumentality of crime, only a more general description may be
possible. For example, when a victim complains that the
computer system has been accessed telephonically by an unknown
person, the investigating officer may only be able to determine
what types of devices were used to accomplish the crime. The
officer may determine that a computer terminal (a keyboard and
display monitor) and a modem (a device that permits digitally
encoded computer information to be transmitted over telephone
lines) were necessary to perform the acts accomplished, but the
officer may not have any information regarding the manufacturers
of the equipment, model numbers, or serial numbers. If a
telephone trace reveals the location from which the intruding
call originated, the officer may have probable cause to search.
Under such circumstances, a rather general description of "a
computer terminal and modem of unknown make or model" would
likely suffice. (31)
Because numerous component parts comprise computer systems,
an investigator applying for a warrant to seize a computer
should ensure that the warrant describes all computer system
parts that are probably present, including mechanisms for data
storage. (32) Consulting with an expert increases the likelihood
of listing thoroughly the items of evidence probably present.
The expert's education and experience should be set forth in the
affidavit to give the magistrate a sound basis for concluding
that the items sought are probably located at the place to be
searched.
Information Processed By Computer
Because the fourth amendment particularity requirement is
strictly applied where documents are concerned, the descriptive
task where computerized information is the subject of a search
warrant is often a demanding one. (33) Nonetheless, courts
reviewing applications for search warrants evaluate the
particularity of the document's description in light of the
degree of precision that the facts of a case allow.
For example, in United States v. Timpani, (34) a search
warrant authorizing the seizure of "any and all records relating
to extortionate credit transactions (loansharking)" (35) was
challenged as being insufficiently particular. In reviewing the
warrant, the court noted that the warrant included a lengthy
list of types of records (including "lists of loan customers,
loan accounts, telephone numbers, address books" (36)) and that
the warrant "provide[d] a standard for segregating the
`innocent' from the `culpable' in the form of requiring a
connection with [the] specific, indentifiable crime [of
loansharking]." (37) The court upheld the particularity of the
warrant, stating, "It is difficult to see how the search warrant
could have been made more precise." (38)
When aware of specific documents sought, an officer should
designate them by type (letter, memo, etc.), date, subject,
author, and addressee, providing as much detail as possible.
For example, when "a letter from John Jones to Bill Smith dated
November 9, 1985, and concerning the ownership of 200 shares of
IBM stock" is sought, officers should describe the letter in
such specific terms.
When only the general nature of the information sought is
known, a highly detailed description is impossible. In such
cases, officers must use great care to give a description that
includes the information sought but limits the search as
narrowly as possible. This is accomplished by using a general
description, qualified by some standard that will enable the
executing officers to separate the information to be seized from
innocent information that may also be present.
Such limiting phrases must be crafted based on the facts
establishing probable cause to search. If the facts establish
that the information sought comes from a particular time period,
the phrase should limit the warrant to information of that time
period. If the information sought is known to have been
produced by a particular individual, the phrase should limit the
description to material authored by that person. If the phrase
combines several such factors, it is even more effective. As
in United States v. Timpani, the phrase may restrict the
description to particular criminal conduct. In that case, the
limiting phrase was "records relating to extortionate credit
transactions (loansharking)." (39)
It is most important that the limiting phrase restrict the
scope of the search so that it remains within the bounds of the
probable cause set out in the affidavit. A warrant may not
validly authorize the seizure of items for which probable cause
to search has not been established. In upholding the
description of items in the warrant in the Timpani case, the
court noted that "[e]ach item is plausibly related to the
crime--loansharking or gambling--that is specifically set out [in
the affidavit]." (40) The description, even though the items to
be seized were described in generic terms, did not exceed the
probable cause because of the use of an appropriately narrow
limiting phrase. (41)
When information sought is described with sufficient
particularity, the form in which the information may be found is
not of great concern. Concluding the list of described items
with the phrase "the documents listed above may be found in
written or electronic form" should be sufficient to permit
lawful seizures of the documents regardless of the form in which
they are found. (42)
EXECUTING THE SEARCH WARRANT
The protection of the fourth amendment does not end when an
officer obtains a valid search warrant. The right of citizens
to be free of "unreasonable searches and seizures" extends to
the manner in which officers execute a search warrant.
The "reasonableness" requirement demands that officers
executing search warrants:
1) Give notice of their authority and purpose, under most
circumstances, prior to forcibly entering premises to
execute the warrant
2) Take only reasonable action, once inside, to control
the premises and prevent the destruction of evidence
3) Conduct the search within the limits set forth in the
warrant, and
4) Refrain from seizing items not listed in the warrant
(unless there are independent, legal grounds for the
seizure).
Each of these requirements has potential impact on computer
searches.
The "Knock and Announce" Requirement
To protect safety, and because of a judicial preference for
peacable entries based on submission to lawful authority,
officers are generally required to knock and announce their
identity and purpose before forcibly entering premises to
perform a search. (43) This requirement is subject to certain
exceptions that allow entry without notice under certain
circumstances, including when officers have information that an
announcement would likely result in the destruction of evidence.
(44) The ease and rapidity of destruction of the evidence sought
is a factor courts will consider in determining whether a
"no-knock" entry was reasonable. (45)
Due to the manner in which it is processed and stored,
computerized information is easily and quickly destroyed.
Information in the computer's active memory can be instantly
destroyed by switching off the machine's power. Information
stored on magnetic media (with capacities of thousands of pages)
can be quickly erased by exposing the storage device to a
magnet. Consequently, when officers know prior to executing a
warrant that information has been stored by computer and that
persons with a motive to destroy the information are likely
present at the place to be searched, an unannounced entry is
likely reasonable. (46)
Controlling the Premises
The U.S. Supreme Court has noted that officers executing a
search warrant exercise "unquestioned command of the situation."
(47) Consequently, officers executing a search warrant have the
power to control access to the premises being searched and to
control the movement of persons present to facilitate the search
and to prevent the removal or destruction of evidence. Because
of the ease of destruction of computerized information and the
size and complexity of some computer facilities, it will often
be reasonable to take full control quickly of the facility to be
searched. (48)
Searching Within the Scope of the Warrant
Requiring a particular description of the items to be
seized limits the allowable scope of a search in two ways.
First, it restricts where an officer may look to only those
places where the items sought might reasonably be concealed.
(49) Second, it restricts the duration of the search to the
point where either all listed items have been located and seized
or until all possible places of concealment have been explored.
(50) Failure to comply with either of these restrictions can
result in a search that violates the fourth amendment.
A sensible first step is to ensure that all searching
officers know the items listed on the warrant. (51) Once on the
scene, the officers should carefully restrict the search to the
items listed in the warrant.
A problem that frequently arises is that of sorting the
items subject to seizure from those that are innocently
possessed. This problem is especially common in cases where
business records are the target of the search. In all cases,
the officers must limit the examination of innocent items to
that necessary to determine whether the items are among those
listed in the warrant. (52)
A search for documents stored in electronic form by a
computer will require use of the computer's display screen to
view documents or the computer's printer to print them. A
sorting process should be used where each document is briefly
examined to determine if it is one of those to be seized,
similar to that used to search through "ink on paper" documents.
Obviously, this type of search requires certain operational
knowledge regarding computer equipment. For this reason, expert
assistance during the search may be essential, especially where
efforts have been made to encrypt or conceal the documents. (53)
In general, the sorting process should be performed at the
scene of the search to prevent unnecessarily denying the owner
access to and use of innocent records. The mere fact that the
sorting process is time consuming does not justify a wholesale
seizure of all records present.
Nonetheless, certain characteristics of computerized
recordkeeping support off-site sorting. First, the storage
capacity of some computerized systems is so great that review of
all documents stored in the system could take a very long time.
Second, unlike with paper files, the number of investigators who
may assist in the search is limited by the number of computer
terminals available for document display. Finally, records
stored by computer can usually be quickly duplicated in their
computerized form, allowing copies to be left for the owner's
use.
Officers who anticipate the need to seize a large quantity
of computerized documents for sorting at a later time should
seek approval from the magistrate when applying for the search
warrant. A likely legal concern in this situation is that the
innocent documents included in the seized records will be
available for unrestrained viewing by investigators, resulting
in a postponed "general search." A potential control on such
unrestricted viewing is continued judicial supervision of the
sorting process. (54)
Disconnecting the Computer from Telephone Lines
The Electronic Communications Privacy Act of 1986 provides
that in order to intercept an electronic communication (which
includes transmission of words or characters from computer to
computer) during its transmission, without the consent of one of
the parties to that communication, an officer must obtain an
extraordinary court order, similar to that required to lawfully
wiretap. (55) Because the computer that is the subject of a
search warrant may be connected electronically to others,
forbidden interception of electronic communications might result
during execution of the warrant. To avoid this, and to ensure
that commands to destroy evidence are not transmitted to the
computer from a remote location, it is sound practice to
disconnect the computer from telephone lines at the outset of
the search.
CONCLUSION
Addressing the situations faced by the two officers
described at the beginning of this article, the first officer
needs to establish factually in his affidavit the probable
existence of financial records that are evidence of crime, and
to describe particularly those records in the search warrant.
The fact that the records may be computerized somewhat
complicates the execution of the warrant, and the officer may
need to seek expert guidance in order to locate and seize the
records in question successfully.
The second officer needs to consider whether the Privacy
Protection Act of 1980 permits the use of a search warrant in
his case when he is seeking authority to search for items he
reasonably believes are, in part, materials prepared for public
dissemination that are in the possession of an innocent third
party. If the officer determines that a search warrant is
appropriate under the circumstances, the officer must then
contend with the challenge of communicating to the magistrate
how a novel criminal offense has been committed by means of a
computer.
As officers approach such challenges, they should carefully
adhere to established fourth amendment principles. These
principles, coupled with the use of expert assistance where
needed, enhance the likelihood of obtaining computerized
evidence that is judicially admissible.
ENDNOTES
(1) Privacy Protection Act of 1980, 42 U.S.C. 2000aa,
et seq.
(2) 42 U.S.C. 2000aa.
(3) 42 U.S.C. 2000aa-6(e).
(4) 42 U.S.C. 2000aa-6. The statute also provides for
award of costs and attorneys fees to a prevailing plaintiff.
For a detailed discussion of the act, see Rissler, "The Privacy
Protection Act of 1980," FBI Law Enforcement Bulletin, February
1981.
(5) Federal law enforcement officers should be aware that
the Attorney General, as directed by 42 U.S.C. 2000aa-11, has
issued guidelines to assure compliance with the Privacy
Protection Act of 1980, which Federal officers must follow to
avoid being the subject of disciplinary proceedings. These
guidelines are found at 28 CFR Part 59.
(6) 42 U.S.C. 2000aa(a)(1), 2000aa(b)(1).
(7) U.S. Const. amend. IV.
(8) See Katz v. United States, 389 U.S. 347 (1967).
(9) Id. at 357.
(10) See Michigan v. Tyler, 436 U.S. 499 (1978).
(11) U.S. Const. amend. IV.
(12) Zurcher v. Stanford Daily, 436 U.S. 547, 556-557 n. 6
(1978), quoting Comment, 28 U. Chi. L. Rev. 664, 687 (1961).
(13) See, e.g., United States v. Morris, 928 F.2d 504, (2d
Cir. 1991), cert. denied, 112 S.Ct. 72 (1991) (defendant
introduced computer "worm" into national research computer
network, shutting down university and government computer
systems across the country); United States v. Taylor, 945 F.2d
1050 (8th Cir. 1991) (defendant accessed American Express
computer system by phone and acquired "working" but unissued
credit card numbers, which he then used to purchase thousands of
dollars worth of merchandise).
(14) An example of an officer successfully obtaining a
search warrant in a case where novel technology was being
employed to commit the crime of fraud is found in Ottensmeyer v.
Chesapeake & Potomac Telephone Co., 756 F.2d 986 (4th Cir.
1985).
(15) See, e.g., United States v. Ortiz, 422 U.S. 891
(1975).
(16) An example of using information provided by experts
in affidavits for search warrants is found in United States v.
Steerwell Leisure Corp., Inc, 598 F. Supp. 171 (W.D.N.Y. 1984).
(17) See United States v. Steerwell Leisure Corp., Inc.,
598 F. Supp. 171 (W.D.N.Y. 1984).
(18) See, e.g., United States v. Truglio, 731 F.2d 1123
(4th Cir. 1984), cert. denied, 469 U.S. 862 (1984).
(19) 959 F.2d 1143 (1st Cir. 1992).
(20) Id. at 1149.
(21) Id. at 1145.
(22) Id. at 1149.
(23) Id.
(24) Illinois v. Gates, 462 U.S. 213, 238 (1983).
(25) See Fitzgerald and Eason, Fundamentals of Data
Communication (John Wiley & Sons, 1978), pp. 42-43.
(26) Cf. United States v. Harvey, 540 F.2d 1345 (8th Cir.
1976).
(27) United States v. McManus, 719 F.2d 1395 (6th Cir.
1983).
(28) Andresen v. Maryland, 427 U.S. 463, 478 n. 9 (1976).
(29) U.S. Const. amend. IV.
(30) See Marron v. United States, 275 U.S. 192 (1927).
For a thorough discussion, see 2 W. LaFave, Search and Seizure,
95-101 (1978).
(31) An analogous case is State v. Van Wert, 199 N.W.2d
514 (Minn. 1972).
(32) Equipment components will probably include a central
processing unit, printers, terminals (keyboards and display
screens), magnetic disk drives, optical disk drives, and
magnetic tape drives. Software and manuals are also critical
components of an operating computer system and should be
included as items to be seized, especially if the officer
anticipates operating the system for investigative or
evidentiary purposes. Common storage media include magnetic
hard disks, floppy disks, and magnetic tapes, as well as optical
disks.
(33) See Andresen v. Maryland, 427 U.S. 463 (1976).
(34) 665 F.2d 1 (1st Cir. 1981).
(35) Id. at 4.
(36) Id.
(37) Id. at 5.
(38) Id.
(39) Id. at 4.
(40) Id. at 5.
(41) An innovative means of limiting the items described
to those for which probable cause to search has been established
is found in the case In Re Search Warrant Dated July 4, 1977,
Etc., 667 F.2d 117 (D.C. Cir. 1981), cert. denied, 102 S.Ct.
1971 (1982). Here, the scope of the description of items to be
seized was limited to documents related to "the crimes ... which
facts recited in the accompanying affidavit make out." The
court, in upholding the warrant, noted with approval the
limiting phrase. As was done in this case, it is often
desirable to incorporate the affidavit into the warrant by
appropriate language and to attach it to the warrant.
(42) See United States v. Truglio, 731 F.2d 1123 (4th Cir.
1984), cert. denied, 469 U.S. 862 (1984). See also, United
States v. Offices Known as 50 State Distrib., 708 F.2d 1371
(9th cir. 1983), cert. denied, 79 L.Ed.2d 677 (1984).
(43) For a thorough discussion, see 2 W. LaFave, Search
and Seizure, 122-140 (1978).
(44) Id.
(45) Id.
(46) Id. The announcement requirement is also less
stringently applied where warrants are executed against business
premises. See United States v. Francis, 646 F.2d 251, 258 (6th
Cir. 1981), cert. denied, 70 L.Ed.2d 616 (1981).
(47) Michigan v. Summers, 452 U.S. 692, 703 (1981).
(48) An example of such action is found in United States
v. Offices Known as 50 State Distrib., 708 F.2d 1371 (9th Cir.
1983), cert denied, 79 L.Ed.2d 677 (1984).
(49) Harris v. United States, 331 U.S. 145 (1947).
(50) Id. In addition to suppression of evidence, civil
liabilityy may result when a search continues after all items
named in the warrant have been seized. See Creamer v. Porter,
754 F.2d 1311 (5th Cir. 1985).
(51) See In Re Search Warrant dated July 4, 1977, Etc.,
667 F.2d 117, 123 (D.C.Cir. 1981), cert. denied, 102 S.Ct. 1971
(1982) (noting with approval that "[i]n preparation for the
search the agents attended several meetings to discuss and
familiarize themselves with the areas and documents described in
the search warrant and accompanying affidavit. They were
instructed to confine themselves to these areas and documents in
their search. During the search each agent carried with him a
copy of the search warrant and its 'Description of Property' and
could contact one of three persons on the scene who carried the
supporting affidavit.")
(52) An officer executing a search warrant will frequently
need to sort through information to determine what portion of it
may be seized pursuant to the warrant. If, during the course of
the process, the allowed limited perusal of information is
sufficient to cause the officer to conclude that the information
is probable evidence of a crime, the officer may lawfully seize
the document without obtaining a second warrant under the "plain
view" exception provided he can later demonstrate that he was
searching reasonably within the limits of the warrant he was
executing when he encountered the evidence, and there was
probable cause upon proper examination of the item that it was
evidence of criminal activity. Horton v. California, 110 S.Ct.
2301 (1990).
(53) An expert accompanied officers executing the search
warrant in Ottensmeyer v. Chesapeake & Potomac Telephone Co.,
756 F.2d 986 (4th Cir. 1985). Another case considering the role
of an expert accompanying officers executing a search warrant is
Forro Precision, Inc. v. International Business Machines Corp.,
673 F.2d 1045 (9th Cir. 1982).
(54) See United States v. Tamura, 694 F.2d 591 (9th Cir.
1982); DeMassa v. Nunez, 747 F.2d 1283 (9th Cir. 1984) (special
master appointed to supervise sorting of documents during search
of attorney's office).
(55) 18 U.S.C. 2511(1).