Friday, January 20, 2012
Stephen E. Henderson (University of Oklahoma College of Law) has posted What Alex Kozinski and the Investigation of Earl Bradley Teach About Searching and Seizing Computers and the Dangers of Inevitable Discovery (Widener Law Review, Forthcoming) on SSRN. Here is the abstract:
This paper tells two stories. One concerns the investigation of a Delaware physician named Earl C. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems – both judicial and extra-judicial – of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Were I not asked to speak on computer searches in relation to the Bradley prosecution, I would likely never have combined them. Yet they share lessons about the practicalities of computers and their search that are worth telling.
In December of 2008, the Delaware State police submitted a warrant application to search Bradley’s medical office. The application was denied. In December of 2009, the police submitted a second application that was granted. The differences between those two applications are revealing, and demonstrate that police will often do better to leave out unnecessary boilerplate regarding computers than to cloud an otherwise straightforward application. The execution of the issued warrant is also revealing, and troubling, as is the judicial decision denying Bradley’s motion to suppress. The execution demonstrates a police attitude that is dismissive, and that could clearly benefit from better training. The judicial response, refusing to exclude evidence that incriminates an evil man, leaves little impetus for that training to occur and demonstrates the danger of applying the doctrine of inevitable discovery when the police fail to obtain a proper warrant.
Unlike that problematic physical search, the initial computer forensics search in the Bradley investigation could not have been more straightforward. But that is rare. It can be time consuming and perhaps even difficult to locate incriminating evidence stored on a computer, and this is where we can learn from Chief Judge Kozinski. In 2004, sitting by designation as a trial judge on the Central District of California, Kozinski was confronted with a defendant’s contention that because a computer contains so much private information, a search warrant should restrict a forensics examiner’s search methodology. Kozinski was unsympathetic. He criticized and rejected the defendant’s claim. But in 2008, Kozinski had a computer problem of his own. His home computer had a publicly accessible partition, and it was found to contain some interesting images, perhaps most memorable among them being naked women painted as cows. Lo and behold, in 2009, Kozinski authored a much more privacy protective decision for the en banc Ninth Circuit. Although that decision was relegated to a concurrence by his court in 2010, Kozinski’s renewed zeal for computer privacy demonstrates a genuine issue. At the same time, the court’s ultimate rejection of his solution, along with its rejection in sister circuits and other courts, correctly recognizes that it will require novel technologies before magistrates – and district courts ex post – can very meaningfully limit the execution of computer searches.