Plain view

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 en

banc 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 a "super

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.