Inferences and particularity
Your clients often ask after oral argument, "How long 'til the court makes a decision?" I argued State v. Castagnola in the Supreme Court on May 29, 2014. It took precisely eleven months for them to come down with the decision.
It was worth the wait. Six of the eleven judges who looked at the search in State v. Castagnola upheld it. Fortunately for me, four of the five who didn't were on the Supreme Court. And they made some nice 4th Amendment law in the process.
Just the facts, ma'am. Nick Castagnola, then 21 going on 14, egged a prosecutor's car and a couple of police cruisers, which mightily pissed off The Man. Using methods normally reserved for drug kingpins, the cops sent a wired informant into Castagnola's house, and used that recording to get a search warrant. The warrant authorized the seizure of computers, although the only indication in the four-page affidavit that suggested Castagnola even had a computer was that Castagnola told the informant he'd found the prosecutor's address "online." In the recording, though, Castagnola never used that word. The computer was sent off to BCI, and the forensic analyst began rummaging through it, looking "for any evidence of intimidation of [the prosecutor] . . . and anything associated with that." She stumbled across some image files, got another warrant, and found child pornography. Castagnola was convicted of vandalism and retaliation, and child porn, and sentenced to 30 months in prison.
Issue #1: The "hidden inference." It's tempting to argue the warrant was invalidated by the false statement of the police officer, and I certainly did. But I didn't make that the focus of my first argument, and it's a good thing: the opinion says if I had, the court would have rejected it on the basis that the statement wasn't intentionally false or made with reckless disregard for the truth. Instead, I argued that detective had usurped the role of the magistrate. It's the magistrate's job to make inferences from the evidence presented in the affidavit, and here the detective had made the inference -- that Castagnola had found the address in on online search on his computer -- and presented it as fact to the magistrate.
But cops make inferences all the time, so where do you draw the line between a permissible one and one that usurps the magistrate's role? Drawing from a California case, the court decides that requires two considerations. First, the more relevant the inference is to the particular inquiry -- here, whether there was probable to believe that evidence of a crime would be found on the computer -- the more significant it will be. Second, the complexity of the inference has to be considered: if the inference is straightforward and a matter of "routine interpretation," then it's not as significant. Conversely, "the more complex and attenuated the logical process by which a relevant conclusion is reached, the more important it is that the magistrate receive an opportunity to test the inference for validity as part of his neutral and detached function."
Applying that here, it's clear the detective's inference that Castagnola had found the address "online" was highly relevant; it was the only evidence that a computer had been used at all. It also found that the inference wasn't a matter of "routine interpretation."
That's not the end of the inquiry: if the inference was so significant it usurped the role of the magistrate, the next question is the affiant's "animus": was the omission intentional or negligent? If the former, then the warrant gets tossed; if the latter, the court excises the misstatement and examines the remainder of the affidavit. The court determines that the omission was negligent, but that without it, there's nothing in the affidavit supporting probable cause to seize the computer.
Issue #2: Particularity. I'd stressed the heightened privacy interest with computers, summed up by this line in my brief: "J.K. Rowling was perhaps right in observing that the best way of measuring a man is to see how he treats his inferiors, but the best way of learning everything about him is to spend a couple hours going through his computer." (And yes, quoting the author of the Harry Potter books in a Supreme Court brief is a bit ballsy, among other adjectives.) I'd used that to argue that the warrant wasn't sufficiently particular: it allowed a wholesale search of the computer, rather than one tailored to finding evidence of the crimes at issue. Again, the majority agreed. The opinion includes some nice language about how "officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant."
A court in addressing particularity looks for two things: "whether the warrant provides sufficient information to 'guide and control' the judgment of the executing officer in what to seize," and "whether the category as specified is too broad in that it includes items that should not be seized." The warrant here flunked both requirements: the forensic analyst was left with unbridled discretion as to what to look for, and the warrant "clearly included items that were not subject to seizure."
Probably the biggest hurdle I had to overcome was the good faith exception to the warrant requirement, but the majority agrees that "The affidavit was so lacking in indicia of probable cause and the warrant was so facially deficient in failing to particularize the items to be searched for on Castagnola's computer that the detective could not have relied on it in objective good faith."
So what to make of all this? The opinion's surprisingly broad, especially with regard to particularity; it's going to be tough for the prosecution to justify a general search of a computer any more. Expansion of the "inference" situation beyond the intentional misstatement contemplated by Delaware v. Franks is a plus, too. And so is the rejection of the good faith exception, where so many 4th Amendment violations go to die.
Castagnola had a weird fact pattern. At bottom, the State was trying to uphold the seizure of a computer based on a statement in an affidavit which everybody agreed was untrue. And at bottom, the court was unwilling to do so.