Vermont Supreme Court upholds search warrant conditions requiring screening in computer search

The Vermont Supreme Court has held that a judge may attach ex ante conditions to a search warrant in an attempt to protect privacy of those searched. The judge issuing the warrant had specified that a search of electronic devices had to be conducted through a third party and restricted evidence of crimes unrelated to the specified crime of identity theft from being shared with investigators. The court did, however, strike down a condition prohibiting the use of the plain view doctrine. In re Application for Search Warrant (2010-479), 2012 VT 102.

An IP address obtained during an identity theft investigation led police to a Vermont address. The resident had set up an unsecured wireless network, and after the resident gave law enforcement permission to access it, the officer determined that a neighbor had accessed the network several times over the previous month. An application was made to search the address, and it was noted that several people lived at the address. The judge granted the search, but placed several restrictions on it including one forbidding police form relying on the plain view doctrine and another requiring a third party to perform a search of computers and forbidding them from sharing evidence of other crimes with investigators or prosecutors. The state filed a motion with the Vermont Supreme Court to have the restrictions removed.

The court held that the plain view doctrine restriction was inappropriate. The later requirements related to the sharing of other evidence removed the need for the provision. But further, "it is beyond the authority of a judicial officer issuing a warrant to abrogate a legal doctrine in this way."

With regard to the requirement of a third party to search the computers and withhold evidence of other crimes from investigators, the court upheld the restriction, finding that the broad search request coupled with "a legitimate privacy interest" allows a judge to provide "instructions on how a search will be conducted."

The court also upheld limitations on techniques of the search as well as instructions concerning "the copying, return, and destruction" of the property acquired in the search.

A concurring and dissenting opinion by Justice Burgess argued that the use of a third party to screen the evidence "does not protect actual privilege or privacy, does not further a Fourth Amendment privacy interest, and does not lend further particularity to the search."

Read Professor Kerr's analysis of the decision here and his 2010 article on the issue here.