The plain view doctrine is based on the practical logic that an officer need not turn a blind eye to evidence that is immediately apparent as incriminating when he is lawfully present, where the object can be seen, and where he has a legal right to access that object. However, in the context of digital searches, this basic logic is stretched to a point that directly conflicts with the original purposes of the Fourth Amendment. The immense amount of data present on computers makes these searches much more intrusive. Officers employ search methods and techniques to access files that involve more investigation than the plain view doctrine ever intended. The problems presented by new technology to placing reasonable limits on the scope of otherwise valid Fourth Amendment searches have caused many courts to defer to traditional methods of analysis, rather than prompting courts to devise a new approach that could better reflect the realities of how police conduct these searches. Certain courts—which this Note designates “traditionalist”—find no reason to change what is a physical doctrine in the digital context, but rather allow it to progress incrementally. This Note argues that courts have made no progress towards appropriately defining reasonableness in the context of digital searches, and that they should be imposing a heightened particularity standard for digital warrants, as well as additional prophylactic steps, as the U.S. Courts of Appeals for the Ninth and (to a lesser extent) Tenth Circuits have suggested. The traditionalist interpretation encouraged law enforcement authorities and training manuals to take advantage of this lax position, and plead general concerns common to all computer cases to justify broad search warrants. Moreover, the same general concerns that convince magistrates to draw such general warrants lead district court judges to defer to an investigator’s discretion. To remain consistent with the original spirit of the Fourth Amendment, as a bar against unfettered police discretion and arbitrary governmental action, courts must adopt a new approach.
Computers as Castles: Preventing the Plain View Doctrine from Becoming a Vehicle for Overbroad Digital Searches ,
79 Fordham L. Rev. 2809
Available at: http://ir.lawnet.fordham.edu/flr/vol79/iss6/11