Georgia court holds that "My Pictures" folder falls within the scope of warrant for drug records

In Henson v. State, 723 S.E.2d 456 (Ga. Ct. App. 2012) a Georgia appellate court held that an officer did not exceed the scope of a warrant issued to find evidence of drug distribution when the officer looked in the defendant's "My Pictures" folder. The officer was searching the defendant's residence lawfully when he came upon the defendant's computer which was in his room and turned on. It appears from the facts of the case that the only thing the officer did was go to the Start Menu, click on "My Pictures," review a few thumbnails, and he ended up discovering child pornography. At that time, he stopped obtained a second warrant which later revealed a large amount of child pornography.

The defendant argued that the officer had exceeded the scope of the warrant because, in essence, it was not reasonable to look in the My Pictures folder for evidence of drug transactions. The court disagreed and held that because records of drug transactions could be stored on a computer (and pictures were worth a thousand words?), the search stayed within the scope of the warrant because it particularly identified "electronic records." The court recognized that there was no Georgia case law on point, but cited to United States v. Walser, 275 F.3d 981 (10th Cir. 2001), where a similar situation had occurred.

In Walser, an officer executing a search warrant was examining a running computer, and while looking within a subfolder of Microsoft Works files, he noticed an AVI file, viewed the thumbnail and determined that the image appeared to depict child pornography. The officer promptly stopped his search, similar to Henson, and obtained a second warrant. The 10th Circuit upheld the search in Walser because the search was not a sweeping search of the computer, but had been executed according to a "clear search methodology." The court went on to state that

officers conducting searches (and the magistrates issuing warrants for those searches) cannot simply conduct a sweeping, comprehensive search of a computer's hard drive. Because computers can hold so much information touching on many different areas of a person's life, there is a greater potential for the "intermingling" of documents and a consequent invasion of privacy when police execute a search for evidence on a computer. . . . Thus, when officers come across relevant computer files intermingled with irrelevant computer files, they "may seal or hold" the computer pending "approval by a magistrate of the conditions and limitations on a further search" of the computer.

The court in Henson analogized the case before them to Walser, stating rather matter-of-factly as if it was clear and obvious that "the officer searching Henson's computer did not engage in a wholesale fishing expedition but was instead seeking files encompassed by the warrant when he stumbled across the images of child pornography." The court went on to offer some cautionary words:

as one prominent legal scholar has noted, "[a] computer is akin to a virtual warehouse of private information"; and just because an officer has the authority to search the data stored on a personal computer (such as Henson's laptop) does not mean that he has the unbridled authority to sift through all of the data stored on the computer. Instead, officers must be as specific as possible in a search warrant regarding what it is they are seeking on the computer and conduct the accompanying search, as the officer did here, in a way that avoids searching files that are not reasonably likely to contain the kinds of data identified in the warrant. 

It is hard to argue that the outcome of this case is wrong, based on the very limited description of the officers actions, but I have two observations: (1) It seems very interesting that the first thing the officer did when he got to the computer was look in the "My Pictures" folder and immediately found child pornography - he is either the luckiest cop alive or the defendant is the unluckiest drug dealer; (2) I think there is at least a somewhat convincing argument that it may not have been reasonable for the officer to search the "My Pictures" folder, first - namely, that the first place I would look for evidence of drug transactions would be akin to what the officer in Walser did, look for evidence of spreadsheets, word documents, or the like. If the crime you are attempting to prosecute is drug distribution, you want evidence of distribution - payments, money owed, inventory, etc. - likely to be in written form. Thus, it is tenuous to argue that "My Pictures" is the logical first stop - I doubt it is common in the drug trade to snap photos of all of your drug deals (or for police to look for photographic evidence of drug transactions). However, looking at the facts in a light most favorable to the prosecution, the motion to suppress was properly denied.

Underlying this, however, is the more fundamental question - how does one properly define the scope of a search with respect to computers so as not to trample Fourth Amendment protections and also meet the particularity requirement? The strictures of a search are easy to define in physical space, but electronic records present novel challenges. Do you define the scope as folders that can be looked in, or sectors of a hard drive, or specific keywords that can be searched for? And how do you protect privacy without crippling the police's ability to properly investigate crimes as technology is used more and more in criminal acts?  This case presented the court with an easy question; I doubt the questions are going to get easier, though.