United States v Cleveland 6thCIR 19OCT2018

United States v Cleveland 6thCIR 19OCT2018

There are number of issues bundled up in this case, but there is one issue that is worth a mention here: when does an off-site virtual search of a digital storage device (cellphone) have to take place to comply with the warrant?  All search warrants have a date within which the search must be initiated.  One of the many reasons for this rule is the simple fact that the probable cause required to obtain the warrant could become stale after a period of time.  But search warrants for digital evidence on a portable digital storage device are different because it authorizes TWO searches and TWO seizures: one in the physical world and one in the virtual world. For example, suppose a warrant authorizes the search for a digital storage device in a specific location and then authorizes the forensic (digital) search of any found digital storage device for particular digital evidence. In this situation there will be a physical search of the home and a physical seizure of the digital storage device. This will be followed by a virtual (forensic) search of the storage device to look for virtual evidence on the physical device.  The question becomes, if the search warrant says the search must take place by a certain date, does that deadline apply to both the physical search of the home and the virtual search of the device seized?  The answer often turns on whether the virtual forensic search occurs on-site or off-site.

In this case, the digital storage device pursuant to a warrant to search the defendant’s home. Once the cellphone was seized, the task force sought and obtained another warrant to conduct a forensic (virtual) search of the cellphone. This warrant required the search to be conducted on or before Nov 27 2015.  The forensic laboratory did not extract the digital evidence from the cellphone until Dec 21 2015. The defendant sought to have the digital evidence excluded since the forensic search came after the deadline established on the warrant.

Applying Rule 41 of the Federal Rules of Criminal Procedure, the court held:

Thus, under Rule 41, an execution period specified in a warrant applies to the time to seize the device or to conduct on-site copying of information from the device. This deadline does not apply to the time to analyze and investigate the contents of the device off-site. Applying this interpretation of Rule 41, the district court held, and we agree, the November 6 warrant’s execution date set a deadline only for when the physical cellphone itself had to be seized, and not for when its data were to be extracted.

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