This case provides an excellent example of how to stay within the scope of a warrant to search digital storage devices such that plain view seizures of other evidence of criminal activity will be admissible.

In this case, FBI Agents had a search warrant to seize digital storage devices (DSDs) and then search them for evidence of fraud.  While searching the DSDs, the agents found evidence of child pornography. They continued searching the DSDs for evidence of fraud and used the description of child pornography images they had previously discovered as the basis for a second search warrant allowing for the search of child pornography.

The defendant argued that once they saw the first suspected child pornography file, they should have stopped an obtained another warrant before proceeding.  The Tenth Circuit disagreed, holding that the Fourth Amendment does not require police officers to stop executing an electronic search warrant when they discover evidence of an ongoing crime outside the scope of the warrant, so long as their search remains directed at uncovering evidence specified in that warrant.

Editor’s Note:  This is a textbook example of how to execute a search warrant for digital data!  It is also yet another example of how the courts will not require a search protocol that is least likely to result in the discovery of criminal evidence outside of the crime being investigated. (If you are in the Ninth Circuit, you could be required to have a taint team conduct the search as a result of rules specific to that circuit and this case is not instructive.)

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