Digital Device Searches Case Inventory

Our Digital Device Search case inventory is filterable by case name, jurisdiction, or topic issue. For a more detailed summary or helpful quote, click on the arrow to the left of the case name. If you see a case missing or in need of an update or would like amicus help in your case, contact defense@eff.org with the case information (Case name, case cite or court number, jurisdiction, subject: "digital device search case" and filing deadline, if applicable).

Last updated: 7/26/18

Case Name Issue / Topic Jurisdiction Summary

U.S. v. Abbell,
914 F. Supp. 519, 520-21
(S.D. Fla. 1995)

Appointment of
Special master
S.D. FL The court ordered a special master to be appointed, at government expense, to determine whether documents and data were responsive to search warrant or fell within some valid exception to warrant requirement; whether documents or data were protected from disclosure because of attorney client, work product, or other applicable privileges; and whether any valid exception to applicable privilege, such as crime-fraud exception, defeated asserted privilege.
Andresen v. Maryland,
427 U.S. 463,
482 n.11 (1976)
Judicial Oversight SCOTUS The court noted that when search warrants authorize the seizure of documents, “responsible officials, including judicial officials, must take care to assure that [the seizures] are conducted in a manner that minimizes unwarranted intrusions upon privacy.”
U.S. v. Bosyk,
2018 WL 4191197
(4th Cir. 2018) (amicus filed, opinion pending)
Lack of Probable Cause 4th Circuit EFF filed an amicus brief urging the Fourth Circuit to follow the Second Circuit's lead in Falso by explaining why an IP address's access or attempt to access a randomized URL from a file-sharing website that was alleged to host child porn is not enough to support probable cause to search a suspect's home or devices.
U.S. v. Brunette,
76 F. Supp. 2d 30, 42 (D. Me. 1999),
aff’d, 256 F.3d 14
(1st Cir. 2001)
Time Limit
for Search
D. ME Suppression was appropriate because the government failed to comply with time limits for reviewing seized computers when those time limits (within 30 days) were required by the warrant.
U.S. v. Carey,
172 F.3d 1268, 1275
(10th Cir. 1999)
Particularity
No Plain View
Ex Ante
Search Protocol
Subsequent Search
10th Circuit A warrant to seize evidence stored on a computer should specify “which type of files are sought” and “law enforcement must engage in the intermediate step of sorting various types of documents and then only search the ones specified in a warrant.” The court suppressed child pornography, holding that the subsequent search of electronic info exceeded the scope of the original warrant for records of narcotics sales, and since the images were in closed files, they were not in plain view, but, were seized pursuant to a general, warrantless search, and consent the defendant gave to the search of his apartment did not carry over to the contents of his computer file. 
U.S. v. Comprehensive
Drug Testing, Inc (CDT)
,
621 F.3d 1162,
1177
(9th Cir. 2010)
(en banc)
Judicial Oversight
No Plain View
Ex Ante
Search Protocol
Appointment of
Special Master
9th Circuit Digital forensic analysis "must not become a vehicle for the government to gain access to data which it has no probable cause to collect." Read Kozinski’s concurrence for guiding principles on how to conduct judicial oversight of a digital search.
U.S. v. Coreas,
419 F.3d 151, 156
(2d Cir. 2005)
Lack of
Probable Cause
2nd Circuit Involved an affidavit that, after false accusations were excised, contained "[s]imply" the allegation that the defendant, "by clicking a button, responded affirmatively to a three-sentence invitation ... to join [a child pornography] e-group." This allegation “does not remotely satisfy Fourth Amendment standards” because "a 'person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.'"
U.S. v. Crozier,
777 F.2d 1376, 1381
(9th Cir. 1985)
– bad case
Flagrant Disregard
Limit on Suppression
9th Circuit “Only those items which fall outside the scope of the warrant need be suppressed.”
Davis v. Gracey,
111 F.3d 1472, 1478
(10th Cir. 1997)
– bad case
Particularity 10th Circuit "[E]ven a warrant that describes the items to be seized in broad or generic terms may be valid 'when the description is as specific as the circumstances and the nature of the activity under investigation permit.'"
U.S. v. Doan,
2007 WL 2247657,
at *3, 245 F. App'x 550, 554
(7th Cir. Aug. 6, 2007)
Staleness 7th Circuit Information that is 17 months old, combined with a lack of information about “the duration of the website subscriptions, the download capability accompanying those subscriptions, the last date [the defendant] accessed the websites, whether [the defendant] downloaded images from these sites, whether [the defendant] owned a computer, or whether [the defendant] had internet access at his home,” are insufficient to establish probable cause.
U.S. v. Falso,
544 F.3d 110, 121
(2d Cir. 2008)
Lack of
Probable Cause
2nd Circuit The court held that there was no substantial basis for probable cause in a warrant that alleged “only that it ‘appear[ed]’ that [the defendant] ‘gained access or attempted to gain access’” to a child porn site (*opinion by Sotomayor as Circuit Judge)
U.S. v. Fleet
Management Ltd.
,
521 F. Supp. 2d 436, 443-44
(E.D. Pa. 2007)
Overbreadth E.D. PA The court held that a warrant authorizing seizure of “any and all data... including, but not limited to,” a list of items from a ship's computers was an invalid general warrant.
U.S. v. Ford,
184 F.3d 566, 576
(6th Cir. 1999)
Overbreadth
Ex Ante
Search Protocol
6th Circuit “Failure to limit broad descriptive terms by relevant dates, when such dates are available to the police, will render a warrant overbroad.”
U.S. v. Foster,
100 F.3d 846, 850-51 & nn.5-6
(10th Cir. 1996)
Flagrant Disregard 10th Circuit The court held that blanket suppression was the proper remedy for flagrant disregard of the search warrant where state officers seized over 60 items not mentioned in the warrant and one of the executing officers testified that the officers had simply taken anything of value in the house, and that this was the usual method employed by police in this particular county.
U.S. v. Ganias,
824 F.3d 199
(2nd Cir. 2016)
Staleness 2nd Circuit The government seized and retained the defendant's (non-responsive) computer files under a search warrant and then reexamined the files nearly two-and-a-half years later for evidence of additional crimes. The court sidestepped the Fourth Amendment issue by relying on good faith.
U.S. v. Gawrysiak,
972 F. Supp. 853, 866
(D.N.J. 1997),
aff’d, 178 F.3d 1281
(3d Cir. 1999)
– bad case
Flagrant Disregard D. NJ “The Fourth Amendment’s mandate of reasonableness does not require the agent to spend days at the site viewing the computer screens to determine precisely which documents may be copied within the scope of the warrant.”
U.S. v. Giberson,
527 F.3d 882, 887
(9th Cir. 2008) 
– bad case
Particularity 9th Circuit Agents were justified in searching a computer “where there was ample evidence that the documents authorized in the warrant could be found” on that computer.
U.S. v. Gray,
78 F.Supp.2d 524, 530-31
(E.D. Va 1999)
Subsequent Search E.D. VA Upheld a search where an agent discovered child pornography in the course of looking for evidence of computer hacking pursuant to a warrant, and then obtained a second warrant before searching the computer for child pornography.
U.S. v. Griffith,
867 F.3d 1265
(DC Cir. 2017)
Particularity
Lack of
Probable Cause
D.C. Circuit To obtain a search warrant for a client’s home to find a cell phone, the government must show probable clause that the client: owns the cell phone; uses the cell phone related to crime; the cell phone will be found at the client’s home; and the cell phone contains evidence of crime. Also, an assertion of probable cause to search all devices regardless of ownership is overbroad.
U.S. v. Grimmett,
439 F.3d 1263, 1268
(10th Cir. 2006)
Flagrant Disregard
Subsequent Search
10th Circuit Carey stands for the proposition that “law enforcement may not expand the scope of a search beyond its original justification.”
U.S. v. Gurczynski,
76 M.J. 381
(C.A.A.F. 2017)
Staleness Court of
Appeal for
the Armed Forces
There is no legitimate government interest in the digital search of a pin drive nine months after the evidence was seized and after the client pleaded.
U.S. v. Hill,
459 F.3d 966, 975-76
(9th Cir. 2006)
Overbreadth 9th Circuit The affidavit must explain why practical constraints might require the seizure of the entire computer system for off-site examination and “demonstrate to the magistrate factually why such a broad search and seizure authority is reasonable in the case at hand.” Although the search warrant was overbroad in authorizing a blanket seizure of defendant's computer equipment and files in the absence of an explanatory supporting affidavit, the exclusionary rule did not require the suppression of pornographic evidence within the scope of the warrant.
U.S. v. Hunter,
13 F. Supp. 2d 574, 584
(D. Vt. 1998)
Particularity
Appointment of
Special Master
D. VT. A warrant to seize “all computers” was not sufficiently particular in that the description “did not indicate the specific crimes for which the equipment was sought, nor were the supporting affidavits or the limits contained in the searching instructions incorporated by reference.” Seizure of “all computers... all computer storage devices... and all computer software systems,” “is a catch-all paragraph, which lacks sufficient limitation” in violation of the Fourth Amendment's particularity requirement. See also 583 n.2  (stating that review by a magistrate judge or special master “may be preferable” to reliance on a filter team) (citing In re Search Warrant, 153 F.R.D. 55, 59 (S.D.N.Y. 1994))
In re Grand Jury Investigation
Concerning
Solid State
Devices, Inc.
,
130 F.3d 853, 856-57
(9th Cir. 1997)
Overbreadth
Lack of
Probable Cause
9th Circuit Granted a business’s petition for return of property where business appeared to be engaged in some legitimate activity and the government failed to present a substantial showing of pervasive fraud. The court found that the scope of the search exceeded the government's showing of probable cause.
In re Grand Jury Subpoenas,
454 F.3d 511, 523-24
(6th Cir. 2006)
Appointment of
Special master
6th Circuit Mandated appointment of a special master to perform first segregation of documents, and rejecting the government’s proposal for a taint team because “we do not see any check in the proposed taint team review procedure against the possibility that the government's team might make some false negative conclusions, finding validly privileged documents to be otherwise.”
In re Appeal of
Application for
Search Warrant
,
193 Vt. 51, 69 (2012)
Ex Ante
Search Protocol
VT
Supreme Ct
“We conclude that ex ante instructions are sometimes acceptable mechanisms for ensuring the particularity of a search.”
In re [REDACTED]@gmail.com,
62 F. Supp. 3d 1100, 1104
(N.D. Cal. 2014)
Overbreadth N.D. CA Held that the government's proposed “seize first, search second” procedure was unreasonable under the Fourth Amendment.
In re Cellular Telephones,
2014 WL 7793690, at *2
(D. Kan. Dec. 30, 2014)
Ex Ante
Search Protocol
D. KS Denial of a search warrant for failure to provide search protocol: “the government's application lacks a search protocol. Thus, the court cannot grant the government's application."
In re Search of
3817 W. West End
,
321 F. Supp. 2d 953, 961-63
(N.D. Ill. 2004)
Ex Ante
Search Protocol
Particularity
N.D. IL The court imposed a search protocol requirement because without a protocol, the warrant lacked particularity that would justify a search of the computers. “We conclude that, as a practical matter, the government can provide the court with a protocol that would supply particularity to the search of the computers. And, we conclude that as a matter of constitutional law, the government must do so in order to satisfy the particularity requirement of the Fourth Amendment. ...[W]hat the government seeks is a license to roam through everything in the computer without limitation and without standards. Such a request fails to satisfy the particularity requirement of the Fourth Amendment, and the Court therefore will not approve it.”
But see U.S. v. Gocha, 2007 WL 2379721 (citing United States v. Summage, 481 F.3d 1075 (8th Cir. 2007))
In the Matter of Applications
for Search Warrants
for Information
Associated with
Target Email
Accounts/
Skype Accounts
,
2013 WL 4647554 at *8
(D. Kan. Aug 27, 2013)
Overbreadth
Particularity
Ex Ante
Search Protocol
D. Kansas A search warrant application was denied because its request for all email communications (including all content of the communications), and all records and other information regarding the account, is too broad and too general. The warrants “fail to set out any limits on the government's review of the potentially large amount of electronic communications and information obtained from the electronic communications service providers. The warrants also do not identify any sorting or filtering procedures for electronic communications and information that are not relevant and do not fall within the scope of the government's probable cause statement, or that contain attorney-client privileged information.”
In the Matter of Search
of Google Email Accounts
Identified in Attachment A
,
92 F. Supp. 3d 944
(D. Alaska Mar. 3, 2015)
Overbreadth D. AK The court held that a search warrant for all the email content of six Gmail accounts was overbroad.
In the Matter of
Search of Info.
Associated with Email
Addresses Stored
at Premises Controlled by
the Microsoft Corp.
,
212 F. Supp.3d 1023, 1038
(D. Kan. 2016)
Lack of
Probable Cause
D. Kansas “Warrant lacked probable cause to support a connection between the investigation and four of the individuals/identifiers listed in the warrant.”
U.S. v. Khanani,
502 F.3d 1281, 1289-90
(11th Cir. 2007)
– bad case
Flagrant Disregard 11th Circuit

“The district court credited ‘the agents' testimony that agents [had been] instructed not to, and [had] made efforts not to, seize’ records that were outside the warrant's scope.”
But see, U.S. v. Gross, 661 F. App’x 1007, 1022 (11th Cir. 2016) (notes that Khanani was superseded by statute with respect to the definition of “proceeds”)

U.S. v. Kow,
58 F.3d 423, 427-29
(9th Cir. 1995)
Particularity
Ex Ante
Search Protocol
9th Circuit “By failing to describe with any particularity the items to be seized, the warrant is indistinguishable from the general warrants repeatedly held by this court to be unconstitutional.” The warrant was invalidated for failure to name crime or limit seizure to documents authored during time frame under investigation.
Manno v. Christie,
2008 WL 4058016, at *4
(D.N.J. Aug. 22, 2008)
– bad case
Overbreadth D. NJ The court found that it was “reasonable for [an agent] to briefly review each electronic document to determine if it is among the materials authorized by the warrant, just as he could if the search was only of paper files.”
U.S. v. Matter of Search of Info.
Associated With Fifteen Email
Addresses Stored at Premises
Owned
,
No. 2:17-CM-3152-WC, 2017
WL 4322826, at *4
(M.D. Ala. Sept. 28, 2017)
Ex Ante
Search Protocol
M.D. AL (partially rescinded on reconsideration: the search limits – except the time period limits – were  rescinded in U.S. v. Matter of Search of Info. Associated with Fifteen Email Addresses Stored at Premises Owned, Maintained, Controlled or Operated by 1&1 Media, Inc., 2:17-CM-3152-WKW, 2017 WL 8751915, at *2 (M.D. Ala. Dec. 1, 2017) The court narrowed the warrants by imposing date and time limits for which there existed probable cause of criminal activity and required the searches to “be conducted through keyword searches and other appropriate protocols so as to limit the universe of data to be reviewed to that which is more likely to be pertinent” in order to prevent the warrants from becoming what Blake classified “the internet-era version of a ‘general warrant.'" US v. Blake, 868 F.3d 960, 974 (11th Cir. 2017) (quoting Coolidge v. New Hampshire, 403 U.S. 433, 467 (1971)).
U.S. v. Medlin,
842 F.2d 1194, 1196-99
(10th Cir. 1988)
Flagrant Disregard 10th Circuit The court ordered a blanket suppression of all items seized pursuant to a federal warrant because local officers seized “667 items of property none of which were identified in the warrant authorizing the search.” The court held that the officers, by seizing so many items not mentioned in the warrant, exhibited a “flagrant disregard” for the terms of the warrant and actually “transformed” the otherwise valid warrant “into a general warrant.”
U.S. v. Neill,
952 F. Supp. 834, 840-41
(D.D.C. 1997)
Appointment
of Special master
D. DC The government's affirmative decision to invoke taint team procedures "constitutes a per se intentional intrusion" into attorney-client privilege.
U.S. v. Otero,
563 F.3d 1127, 1132
(10th Cir. 2009)
Particularity
Overbreadth
10th Circuit The ability of a computer to store "a huge array" of information "makes the particularity requirement that much more important." "Wisely, the government does not contest that a warrant authorizing a search of 'any and all information and/or data' stored on a computer would be anything but the sort of wide-ranging search that fails to satisfy the particularity requirement."
U.S. v. Payton,
573 F.3d 859, 862
(9th Cir. 2009)

Particularity 9th Circuit "Searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers. Such considerations commonly support the need specifically to authorize the search of computers in a search warrant." (distinguishing Giberson)
U.S. v. Rettig,
589 F.2d 418, 421-23
(9th Cir. 1978)
Flagrant Disregard 9th Circuit The court held that because executing officers seized “some 2,288 items,” “this warrant became an instrument for conducting a general search,” and suppressed all evidence discovered in the search.
U.S. v. Riccardi,
405 F.3d 852, 862
(10th Cir. 2005)
Particularity 10th Circuit Involved an investigation into harassing phone calls. The court held that a warrant authorizing seizure of all storage media and “not limited to any particular files” violated the Fourth Amendment, but the fruits of the unlawful search were saved by the good faith exception.
Riley v. California,
134 S. Ct. 2473 (2014)
Warrant for
Digital Search
SCOTUS Unanimously held that a digital search of cell phone contents requires a warrant even incident to arrest.
U.S. v. Rodriguez,
761 F.2d 1339, 1341
(9th Cir. 1985)
Lack of
Probable Cause
9th Circuit “[M]ere proximity to contraband, presence on property where it is found, and association with a person or persons having control of it are all insufficient to establish constructive possession.”
U.S. v. Tamura,
694 F.2d 591, 595-96
(9th Cir. 1982)
Overbreadth 9th Circuit Wholesale seizure is “the kind of investigatory dragnet that the Fourth Amendment was designed to prevent.” (quoting United States v. Abrams, 615 F.2d 541, 543 (1st Cir. 1980)).
U.S. v. Vilar,
2007 WL 1075041, at *36
(S.D.N.Y. Apr. 4, 2007)
Particularity S.D. NY “[U]nderlying information must be identified with particularity and its seizure independently supported by probable cause.”
U.S. v. Walser,
275 F.3d 981, 986-87
(10th Cir. 2001)
– bad case
Subsequent Search 10th Circuit The court upheld a search where an officer with warrant to search for electronic records of drug transactions discovered child pornography on a computer, suspended search, and then returned to magistrate for second warrant to search for child pornography.
U.S. v. Wuagneux,
683 F.2d 1343, 1354
(11th Cir. 1982)
Flagrant Disregard 11th Circuit “Total suppression may be appropriate where the executing officer's conduct exceeds any reasonable interpretation of the warrant's provisions. … Courts have consistently held, however, that absent a 'flagrant disregard' of the terms of the warrant, the seizure of items outside the scope of a warrant will not affect admissibility of items properly seized.”
Ybarra v. Illinois,
444 U.S. 85, 91
(1979)
Lack of
Probable Cause
SCOTUS The court invalidated search of a tavern patron who was present when law enforcement executed a search warrant at the tavern, reasoning that “a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”
U.S. v. Zimmerman,
277 F.3d 426, 433-34
(3d Cir. 2002)
Staleness 3rd Circuit Distinguished retention of adult pornography from retention of child pornography and held that evidence that adult pornography had been on a computer at least six months before a warrant was issued was stale.
US v. Warshak, 631 F.3d 266 (6th Cir. 2010) Lack of
Probable Cause SW
6th Circuit

Recognized REP in e-mails and held government agents violated 4th Am by compelling ISP to turn over email without first obtaining warrant based on probable cause. But exclusionary rule did not apply because agents relied in good faith on provisions of SCA.

Border Cases

Name Cite Jurisdiction Summary
U.S. v. Ramsey,
431 U.S. 606, 618 n.13
(1977)
Digital Border Search SCOTUS The court left open "whether, and under what circumstances, a border search might be deemed 'unreasonable' because of the particularly offensive manner in which it is carried out."
U.S. v. Montoya de Hernandez,
473 U.S. 531, 541
(1985)
Digital Border Search SCOTUS Detaining a traveler until she defecated to see if she was smuggling drugs in her digestive tract was a seizure “beyond the scope of a routine customs search and inspection” and the search required “reasonable suspicion” that she was a drug mule.
U.S. v. Flores-Montano,
541 U.S. 149, 152
(2004)
Digital Border Search SCOTUS No reasonable expectation of privacy in the defendant’s  fuel tank, so disassembly of the gas tank at the border does not require reasonable suspicion.
Alasaad v. Nielson,
2018 WL 2170323
Digital Border Search D. Mass. The first civil case after the decision in Riley. Civil rights lawsuit against the Department of Homeland Security, brought by EFF and ACLU< for warrantless and suspicionless digital device searches of U.S. citizens and law permanent residents at the border.
U.S. v. Djibo,
151 F. Supp. 3d 297, 310
(E.D.N.Y. 2015)
Digital Border Search ED NY Defendant was detained at airport and gave agents his phone’s passcode during questioning, but before receiving Miranda warnings. Agents then arrested him and used the passcode to do a forensic search of his phone, which revealed info used to get a warrant for a second forensic search. The court held that the defendant was in custody at the airport, and since he wasn’t read his Miranda warnings, his passcode statement was suppressed, as were results of the initial forensic search based on passcode unlocking. The second warranted search was unreasonable as fruit of the first illegal search.
U.S. v. Kim,
103 F. Supp. 3d 32, 59
(D.D.C. 2015),
appeal dismissed
Digital Border Search D. DC Outbound search of a defendant suspected of prior export violations: “Court finds, under the totality of the unique circumstances of this case, that the imaging and search of the entire contents of [the defendant's] laptop, aided by specialized forensic software, for a period of unlimited duration and an examination of unlimited scope, for the purpose of gathering evidence in a pre-existing investigation, was supported by so little suspicion of ongoing or imminent criminal activity, and was so invasive of [the defendant's] privacy and so disconnected from not only the considerations underlying the breadth of the government’s authority to search at the border, but also the border itself, that it was unreasonable.”
U.S. v. Kolsuz,
185 F. Supp. 3d 843
(E.D. Va. 2016)
(aff’d United States v. Kolsuz,
890 F.3d 133 (4th Cir. 2018))
Digital Border Search E.D. VA Manual search of a phone with a forensic search after arrest for exporting guns. The court followed the decision in Cotterman. See 852 n.11
U.S. v. Molina-Isidoro,
267 F. Supp. 3d 900, 909
(W.D. Tex. 2016)
(aff’d 884 F.3d 287
(5th Cir. 2018))
Digital Border Search W.D. TX Involved manual searches of WhatsApp and Uber phone apps after an arrest for drugs. The court felt constrained to apply no more than reasonable suspicion. But “were this court free to decide this matter in the first instance, it might prefer that a warrant be required to search an individual’s cell phone at the border.”
U.S. v. Stewart,
729 F.3d 517
(6th Cir. 2013)
Digital Border Search 6th Circuit The court held that a manual search of a laptop located 20 miles from the airport and 24 hours after initial seizure was a “routine” search covered by the border search exception, and was not an extended border search that required reasonable suspicion.
U.S. v. Feiten,
2016 WL 894452
(E.D. Mich. 2016)
Digital Border Search E.D. MI The court decided that “the forensic preview using the OS Triage software was permissible” because the court considered the forensic search less invasive than a manual search of the computer.
U.S. v. Cotterman,
709 F.3d 952
(9th Cir. 2013)
(en banc)
Digital Border Search 9th Circuit A “forensic” border search of a digital device is “non-routine” and requires reasonable suspicion.
U.S. v. Caballero,
178 F. Supp. 3d 1008, 1017-20
(S.D. Cal. 2016)
Digital Border Search SD CA
(9th Circuit
appeal
pending…)
Involved the manual search of a phone after arrest for drugs. The court said it was bound by Cotterman, but, “if it could, this court would apply Riley.” “One can certainly say that Riley casts doubt on Cotterman’s approval of warrantless searches where an arrest is made.”
U.S. v. Cano,
222 F. Supp. 3d 876
(S.D. Cal. 2016)
Digital Border Search SD CA
(9th Circuit
appeal
pending…)
Involved manual and forensic searches of a phone after an arrest for drugs. The court bound by Cotterman.
U.S. v. Vergara,
884 F.3d 1309
(11th Cir. 2018)
Digital Border Search 11th Circuit
(post-Riley)
The court held that forensic searches of a defendant's cell phones at the border did not require a warrant or probable cause. (Dissent by Judge Pryor.)
U.S. v. Touset,
2016 WL 1048047
(N.D. Ga. 2016)
Digital Border Search ND GA A forensic search of a laptop uncovered child porn. The court followed Cotterman, and failed to mention Riley.

For more border search cases involving digital devices, see NACDL’s Border Search Case List.