In United States v. Comprehensive Drug Testing, Inc., 2010 WL 3529247 the
issue was whether the government abused its power in the request and execution
of warrants and subpoenas. This case began with a Ninth Circuit panel
opinion, then an enbanc opinion issued on August 26, 2009. See United
States v. Comprehensive Data
Testing, 579 F.3d 989 (9th Cir. 2009) (CDT II). The government requested
en banc" hearing by the entire Ninth Circuit. The Ninth Circuit did
not hold a new
hearing; instead they issued a revised opinion on September 13, 2010. United States
v. Comprehensive Drug Testing, Inc., 2010 WL 3529247 (CDT III).
The court held that the government did overreach in its request and execution
of its warrants and subpoenas. (per curiam opinion with four different
concurrences and/or dissents). The revised opinion was exactly the same
as the initial opinion regarding the factual issues in front of the court.
The revision was the removal from the majority opinion of all of the principles
summarized in the "Concluding Thoughts" section.
Those recommendations became part of a five-judge concurrence written by
the Chief Judge, who authored the initial opinion. The practical effect
of the new opinion was the elimination of some severely restrictive procedures
placed on the government in the initial opinion. The issue of applying
plain view to digital evidence did not disappear, however, because the
opinion still held that plain view did not apply in this case. The court
also articulated its concern that "[a]uthorization to search some
computer files therefore automatically becomes authorization to search
all files in the same sub-directory, and all files in an enveloping directory,
a neighboring hard-drive, a nearby computer or nearby storage media."
CDT III at 12. In addition to the CDT III majority still showing this
concern about an expansive application of the plain view doctrine to digital
searches, the CDT III concurrence still supported the use of the rules
originally listed in the CDT II. The CDT III concurrence now claims that
following these rules provides the government with a "safe harbor."
CDT III at 14.
For more information about plain view laws and searches,
contact our court martial lawyers at Bilecki & Tipon LLLC.