By Erin Snow
When the Constitution was written over two hundred years ago, the Industrial Revolution was still decades away, and “state of the art” technologies included butter churners and buggies. The Founders never could have imagined contemporary technologies such as computers and hard drives, capable of storing the information equivalent of entire libraries within a tiny physical space. In United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009), the Court considered, but declined to resolve, the extent to which the Fourth Amendment protects against unreasonable searches and seizures of digital storage devices.
In Burgess, after the defendant was pulled over for expired plates and arrested for drug possession, a forensic search of his laptop and hard drives revealed hundreds of images of child pornography. Burgess appealed his conviction of two counts of knowing transportation of child pornography across state lines, claiming that the district court erred in admitting the photographs because the search of his hard drive exceeded the scope of the warrant and violated his Fourth Amendment rights. The 10th Circuit considered, but declined to resolve, the extent to which the Fourth Amendment protects against unreasonable searches and seizures of digital storage devices. Instead, the Court found the search of Burgess’ hard drive was authorized by a warrant and affirmed the district court’s decision.
In July 2007, a Wyoming officer pulled over Shayne Waldron and David Burgess, known Hell’s Angels members, driving a motor home and towing a trailer with expired plates. While issuing a ticket for expired plates, the trooper smelled burnt marijuana and called for backup. After the canine alerted at the doors of Burgess’s mobile home, the officers searched the home; this warrantless search was considered reasonable because of the suspicions raised by the dog’s alert. Inside the home, they discovered recreational amounts of marijuana and cocaine, in addition to a laptop computer and a hard drive. The officers arrested Burgess and secured a new warrant to search the laptop and hard drive data for potential “trophy photos” evidencing drug trafficking activities – perhaps a picture of Burgess holding a bag of money in front of a pile of illegal drugs.
Upon returning to search the motor home again, the officers discovered yet another hard drive shoved between the couch cushions, and sent the laptop and both hard drives to Cheyenne, Wyoming, for e-forensic examination. Weeks later, while a special agent with the Internet Crimes Against Children Division began searching hard drive data, the agent came upon a photograph depicting child sexual exploitation and immediately stopped his search to secure a new warrant. The agent’s subsequent search of the hard drives uncovered approximately 1,300 pornographic images of minors; he stopped searching at this point, but conservatively estimated the drives contained 70,000 such images. A grand jury indicted Burgess for knowing transportation of child pornography across state lines in violation of 18 U.S.C. §§ 2252A(a)(1) and (b)(1), and knowing possession of child pornography transported in interstate commerce in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2).
Burgess appealed to the 10th Circuit on several grounds, including the denial of his motion to suppress the photographs found on his hard drives, the admission of images from one hard drive, and the length of his sentence. The Court declined to resolve the extent to which the Fourth Amendment protects against unreasonable searches and seizures of computers without an adequate warrant, stating the issue need not be addressed because the search of Burgess’ hard drives fell within the scope of the warrant. The Court also upheld the district court’s admission of the sixteen images and affirmed the length of Burgess’s sentence.
Fourth Amendment doctrine concerning legal searches of physical spaces, whether homes or handbags, has long been settled, but as society becomes increasingly dependent on computer technology, it seems more likely that the Supreme Court will eventually clarify the Constitutional scope of data searches.