Search and Seizure - Beware the "Cut and Paste."

I have written about this before, and in all likelihood, there will continue to be good material to write about as long as human beings keep trying to invent newer and more advanced technology.

It is not often that the Courts take a firm and proper limiting stand on the power of police investigators (including UCMJ military investigators like CID, NCIS, OSI) but one very recent case from the State of Oregon has floated to the surface and, as I read it, is a firm stand against sloppy cut and paste investigator work on search warrants.

The specifics of the case are not important, other than it was an allegation of assault involving two specific named victims, and it suffices to say that police were able to get a search warrant signed for a defendant's "mobile device, computer, laptop and accessories" to see if they contained evidence of a crimes against children, as in all children, everywhere.

As someone who has seen a lot of search authorizations, I know that military investigators and other drafters suffer from 1) a lack of original thought 2) a propensity to cut and paste.

It was the propensity to cut and paste that got investigators in trouble in Oregon. Instead of tailoring the search authorization to seize items that the investigator actually had probable cause to seize regarding two specific victims, investigators cut and pasted in language from other search warrants resulting in an overly broad document. They then seized all his electronic and started looking through them for evidence of crimes that there was no suspicion (aka no probable cause) that he had committed. Most troubling, investigators seized a paper sketchbook containing notes and journal like entries from the defendant. As an attorney, I may lack computer saavy, but I know the difference between a paper sketchbook and a MacBook, and the search warrant did not authorize the seizure of the sketchbook, yet into the evidence bag it went.

As an aside, since this was state court, the search warrant was signed by a Magistrate. A Magistrate is a county official, similar to a Judge, but with a more limited scope of duties, including probable cause reviews for arrests, search authorizations and bond determinations. They see hundreds of search authorizations, unlike military magistrates, who may sign two to three search and seizure authorizations over the course of a two year assignment. The Magistrate should have known better and pushed back on law enforcement to narrow the scope.

You do not have to consent to a search, and your refusal to consent cannot be held against you. If you are handed a search warrant by law enforcement, be sure to take the copy, take a picture of it, or at the very least, remember what law enforcement agency is executing the search and tell your attorney. Searches are always ripe for challenge by defense counsel. This is your military lawyer and defense counsel's job, but you need to be engaged in your defense as well.