CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, June 26, 2013

"Second Circuit Suggests That the Plain View Exception Should Be Applied More Narrowly to Digital Searches"

Orin Kerr has this post at The Volokh Conspiracy. In part:

[T]he Second Circuit appears to be saying that there is some sort of heightened standard for when an agent is allowed to conduct a search through a computer. Some of the words suggest at least a subjective test (thus the focus on whether the “search was even directed” at the evidence), which is what the Tenth Circuit adopted in United States v. Carey, 172 F.3d 1268, 1273 (10th Cir. 1999). Other parts of the passage suggest some sort of heightened scrutiny beyond subjective intent. Parts suggest a necessity test: Would a proper search have “necessitated” the opening of a particular file? And other parts of the passage suggest a “possible evidentiary connection” test, which I gather would be ess strict than a necessity test. But both tests would be really murky: What does it mean to say that a particular search query is “necessary”?

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