Computers and the 4th Amendment
Pretty much as I figured, the best arguments I came up with before the Supreme Court in State v. Castagnola were on the ride back from Columbus on Wednesday.
To me, the case always seemed to be a simple one. Castagnola and some buddies had egged a city prosecutor's car and a police car. Somebody told the police Castagnola had done it, so the cops wired an informant and sent him into Castagnola's house, and in the course of a 50-minute conversation monitored by the cops, Castagnola made a complete admission to the crime. So the police got a search warrant and went in and seized his computer. They searched it a week later, and found some child porn.
Why'd they seize his computer? you ask. Because, according to the affidavit for the warrant, during the monitored conversation, Castagnola said he'd found the prosecutor's address "online." That's the only reference to anything remotely related to computers in the whole affidavit.
Oh, one more thing. The monitored conversation was recorded. Castagnola never used the word "online."
That didn't keep me from losing the suppression motion at the trial court (post here), or, by a 2-1 vote, in the 9th District. They basically held that the detective made a "fair inference" that Castagnola had used a computer to search for the address. I appealed to the Supreme Court, and much to my astonishment, they agreed to hear it. On Wednesday morning, we argued the case.
I'd presented two propositions of law, the first dealing with the seizure of the computer, the second with the search. The latter argued that a general exploratory search of a computer was impermissible, because of the heightened privacy expectation in it, and didn't meet the 4th Amendment's particularity requirement. I'd spend some more time explaining the argument, but there's not much sense in doing so, because it went absolutely nowhere.
So we spent most of the time arguing about the first one, which I figured that was my strongest, anyway. My basic pitch was that the "fair inference" argument was wrong on three counts.
First, it presented the detective's inference as fact. It's the magistrate who is supposed to draw the inferences regarding probable cause, not the detective.
Second, there's a Franks problem. Franks v. Delaware is the Supreme Court case holding that if a police officer makes a statement in an affidavit knowing it's false, or with reckless disregard of its falsity, you have to excise that statement; I contended that when you start putting words in other people's mouths that they didn't say, that's more than an honest mistake, especially if you monitored the conversation and had a tape of it to rely on. And if you excise the word "online," you've got nothing in the affidavit remotely relating to a computer.
The third problem was that even if you include the word online, that still doesn't give you probable cause to believe that Castagnola used a computer to find the address (as opposed to a smartphone with browser capability), that he used his computer, and that evidence of that use would still be on the computer.
I didn't get a real strong feel as to how that went over, though. The basic problem is that everybody figures that you would use a computer for something like that, because just about everybody does use a computer to look up addresses. And for just about everything else. Want a recipe for ribs? There are plenty of online cooking sites. Want to find out how to get somewhere? Mapquest or Google Maps will take care of that. In fact, if you want to find out anything about anything, Google is your BFF.
And that's the problem. It doesn't take much to imagine how anybody could use a computer in connection with just about any crime. There were some other people involved with Castagnola; is it unreasonable to believe that he might have communicated with them about this through emails? Is it unreasonable to believe that the guy slinging dope might have a computer where he keeps track of the drug transactions? Is it unreasonable to believe that just about anybody committing just about any crime might have used a computer in connection with that?
The logical extension of that argument was best demonstrated during the prosecutor's argument, in her response to my pointing out that the warrant also sought "cameras, videorecorders, and other photographic devices." Seizure of those devices, she said, was justified, because Castagnola might have photographed or videotaped the egging incidents.
And that's what I thought about on the way back to Cleveland. Is that what we've come to? "Probable cause" to seize an item exists as long as it's possible to think of a way the item might have been used, or how it might contain evidence of the crime? Allowing the police to seize a computer and rummage through it anytime an officer can think of a way that it could've been used in connection with a crime certainly isn't consistent with my view of the protections of the 4th Amendment.
We'll see what happens. In the meantime, if you want to check out the oral argument, you can find it here. It will also answer any lingering questions you might have as to why I don't have a picture of me on the blog.
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