The opinion of the court was delivered by: Dooley, J.
In re Application for Search Warrant (2010-479)
Michael S. Kupersmith, J.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
¶ 1. In this complaint for extraordinary relief, we are asked to determine whether a judicial officer has discretion to attach ex ante or prospective conditions to a search warrant. The State petitions this Court to strike ten such conditions pertaining to the search of a personal computer, seized by police as part of an identity theft investigation. The State contends that the conditions exceed the judicial officer's authority under the Fourth Amendment and unnecessarily impede law enforcement's ability to investigate crime. Two amici have filed briefs in opposition to the State's petition, and they argue that the conditions are a valid exercise of the judicial officer's authority and are necessary to protect personal privacy. We grant the petition in part and strike the condition abrogating the plain view doctrine. Because we conclude that the remaining conditions serve legitimate privacy interests, the petition is otherwise denied.
¶ 2. In December 2010, a Burlington Police Detective was assigned to investigate an identity theft case transferred from the New York State Police. In conjunction with the investigation, he applied for a warrant to search a home at 145 Pleasant Avenue in Burlington. The affidavit submitted in support of the warrant recites the following facts.
¶ 3. The crime was reported by a resident of New York. In an interview with the Vermont detective, the victim stated that someone had fraudulently attempted to apply for credit cards online using his name and identifying information and to change his address with the United States Postal Service. Based on this information, the detective contacted one of the banks involved and obtained the internet protocol (IP)*fn1 address that was used to submit one of the fraudulent credit card applications. The bank also provided the information submitted in the online application, which listed the victim's true name and social security number, but contained other information that was false, including an address of 145 Pleasant Ave., Burlington, Vermont, and an electronic mail address of firstname.lastname@example.org. Both police and motor vehicle records indicate that 145 Pleasant Avenue is occupied by Eric Gulfield.
¶ 4. From the internet service provider, the detective learned that at the time the fraudulent application was submitted online, the IP address used belonged to a subscriber listed at 134 Pleasant Avenue. The detective visited the location and observed that there was an open (unprotected by a password) wireless internet (WIFI) connection coming from 134 Pleasant Avenue. He determined that the signal was likely strong enough to access from 145 Pleasant Avenue. The detective interviewed the resident of 134 Pleasant Avenue and obtained permission to access the router log to determine if other computers had used the wireless connection. From this log, the detective discovered that the previous month the router was accessed several times by a computer with an assigned name of GulfieldProp-PC.
¶ 5. Based on the foregoing information, the detective applied for a warrant to search 145 Pleasant Avenue for "evidence of the crime of Identity Theft." The application requested permission to seize records "in whatever form they are found,"including any computers or other electronic medium. An attachment described the property to be seized in more detail, including:
Any computers or electronic media, including hard disks, magnetic tapes, compact disks ("CD"), digital video disks ("DVD"), cell phones or mobile devices and removable storage devices such as thumb drives, flash drives, secure digital ("SD") cards or similar devices, floppy disks and zip disks (hereinafter "MEDIA") that were or may have been used as a means to commit the offense described on the warrant.
The application did not list one person as the target of the search; rather, it noted that multiple people were living in the target address and requested permission to seize electronic devices regardless of ownership. As justification, the affidavit explained that electronic information may be easily moved between different computers and other electronic storage devices.
¶ 6. Reciting general information about the large volume of information stored on a computer, the technical expertise required to search data that can be hidden, password protected, or encrypted, and the time involved in such a search, the application requested authorization to seize any computers for search off-site. The application further stated:
In some cases, it is possible for law enforcement officers and forensic examiners to conduct carefully targeted searches that can locate evidence without requiring a time-consuming manual search through unrelated materials that may be commingled with criminal evidence. In other cases, however, such techniques may not yield the evidence described in the warrant. Criminals can mislabel or hide files and directories, encode communications to avoid using key words, attempt to delete files to evade detection, or take other steps designed to frustrate law enforcement searches for information. These steps may require agents and law enforcement or other analysts with appropriate expertise to conduct more extensive searches, such as scanning areas of the disk not allocated to listed files, or peruse every file briefly to determine whether it falls within the scope of the warrant. In light of these difficulties, the [applicant]intends to use whatever data analysis techniques appear necessary to locate and retrieve the evidence . . . .
¶ 7. The judicial officer reviewing the request granted a warrant to search the residence and to seize electronic devices to be searched at an off-site facility for as long as reasonably necessary. In a separate order, however, the judicial officer stated only that "[t]he application to search the computer belonging to Eric Gulfield is granted," and attached conditions: (1) restricting the police from relying on the plain view doctrine to seize any incriminatory electronic record not authorized by the warrant--that is, "any digital evidence relating to criminal matters other than identity theft offenses"; (2) requiring third parties or specially trained computer personnel to conduct the search behind a "firewall" and provide to State investigatory agents only "digital evidence relating to identity theft offenses"*fn2 ; (3) requiring digital evidence relating to the offenses to be segregated and redacted from surrounding non-evidentiary data before being delivered to the case investigators, "no matter how intermingled it is"; (4) precluding State police personnel who are involved in conducting the search under condition (2) from disclosing their work to prosecutors or investigators; (5) limiting the search protocol to methods designed to uncover only information for which the State has probable cause; (6) precluding the use of specialized "hashing tools" and "similar search tools" without specific authorization of the court; (7) allowing only evidence "relevant to the targeted alleged activities" to be copied to provide to State agents; (8) requiring the State to return "non-responsive data" and to inform the court of this action; (9) directing police to destroy remaining copies of electronic data absent judicial authorization otherwise; and (10) requiring the State to file a return within the time limit of the warrant*fn3 to indicate precisely what data was obtained, returned, and destroyed. Law enforcement conducted a search of the premises and seized, but did not search, a personal computer and an iPad.*fn4
¶ 8. The State then filed a motion for extraordinary relief in this Court requesting that the Court strike the ex ante conditions from the warrant. In support of its petition, the State argues that the judicial officer lacked authority to impose ex ante restrictions on the search; that the conditions are unnecessary and impede legal development in the area of computer searches; and that the conditions impermissibly impede effective law enforcement investigation. The Defender General and the American Civil Liberties Union (ACLU)*fn5 submitted briefs as amici curiae in opposition to the State's petition.*fn6 The ACLU argues that computers are fundamentally different from paper records or filing cabinets because of the vast volume of personal data stored in a computer and due to a computer's unique ability to retain hidden and deleted information and to act as a portal to other remote storages of information. To protect privacy, the ACLU argues that the Fourth Amendment demands more stringent requirements to search electronic devices. The Defender General argues that such conditions are key to protecting privacy under Article 11 of the Vermont Constitution. Therefore, both amici contend that the conditions are necessary and not beyond the judge's discretion in issuing a warrant.
¶ 9. We first must address the jurisdictional grounds for this action. This is an original jurisdiction case instigated by the State's direct petition for extraordinary relief. Extraordinary relief is a "flexible procedure" that is available when all other avenues are closed. In re Vt. Sup. Ct. Admin. Directive No. 17, 154 Vt. 392, 397, 579 A.2d 1036, 1039 (1990). Extraordinary relief is, however, limited to when "there is no adequate remedy by appeal" or by filing for extraordinary relief in the superior court. V.R.A.P. 21(b). In this case, there is no remedy by appeal because the State has no right of appeal from a judge's decision to grant, but condition, a warrant request. See 13 V.S.A. § 7403 (limiting State's ability to appeal in criminal cases to situations where prosecution has begun). The State argued that this is a rare case where extraordinary relief is appropriately brought in this Court in the first instance because the issue raised is a pure question of law that requires no factual development. Cf. In re Hill, 149 Vt. 86, 86, 539 A.2d 992, 993 (1987) (per curiam) (dismissing petition for extraordinary relief where issues could be dealt with in the course of litigation and on appeal if necessary).
¶ 10. The Defender General moved to dismiss the petition for lack of jurisdiction, arguing that there was no live controversy because the State's contention of injury was speculative and that there were other available means for relief. The Defender General contended that the State should file its petition for extraordinary relief in the civil division in the first instance for further factual development. This Court denied the motion. We now reaffirm that denial. The petition for relief may be decided by this Court in the first instance given that the State is challenging the judicial officer's authority to impose the conditions, as in the nature of a mandamus action, which is a purely legal question that requires no evidentiary analysis. See, e.g., State v. Saari, 152 Vt. 510, 514-15, 568 A.2d 344, 347 (1989).
¶ 11. Although we conclude that there is jurisdiction, we also emphasize that extraordinary relief in the nature of mandamus is a limited remedy. It is to be granted only when the State shows that the judge's decisions "were usurpations of judicial power, clear abuses of discretion, or arbitrary abuses of power." State v. Pratt, 173 Vt. 562, 563, 795 A.2d 1148, 1149 (2002) (mem.). Therefore, we must determine whether the judicial officer's decision to impose ex ante restrictions was an abuse of power, clearly contrary to law.
¶ 12. Having found jurisdiction, we consider the scope of this appeal. The central premise of the judicial officer who issued the warrant, a premise reiterated by amici, is that the State is bound by the warrant conditions, hereinafter referred to as instructions. In general, this is settled law: warrant instructions are binding so that a violation of them renders the search unconstitutional. United States v. Brunette, 76 F. Supp. 2d 30, 42 (D. Me. 1999) ("It is settled law that the search and seizure of evidence, conducted under a warrant, must conform to the requirements of that warrant."). Enforcing an issuing judicial officer's directions ensures that the warrant requirement is meaningful and effective. See United States v. Leon, 468 U.S. 897, 914 (1984) ("[T]he preference for warrants is most appropriately effectuated by according 'great deference' to a magistrate's determination." (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969))). Thus, for example, a failure to abide by the warrant's time restrictions may be cause for suppression of evidence obtained in the search pursuant to the warrant. See Sgro v. United States, 287 U.S. 206, 211 (1932); United States v. Bedford, 519 F.2d 650, 655 (3d Cir. 1975) ("If the police were allowed to execute the warrant at leisure, the safeguard of judicial control over the search which the fourth amendment is intended to accomplish would be eviscerated.").
¶ 13. The State argues, however, that this settled law does not apply to ex ante instructions--that is, instructions imposed with the warrant on how to execute the warrant. The instructions in this case are ex ante instructions. Essentially, the State's position is that the requirements of the Fourth Amendment of the Federal Constitution and Chapter I, Article 11 of the Vermont Constitution do not extend to such instructions so that violation of these instructions would not itself make the search unconstitutional.*fn7 Secondarily, the State argues that the judicial officer does not have the power to issue such instructions under Vermont law so they are invalid irrespective of the constitutional mandate.
¶ 14. The issues in this case are unlike the search and seizure questions that we have resolved in the past. The difference involves the nature of the constitutional guarantee, as a right of a citizen to be free from a search and/or seizure that does not comport with constitutional requirements. In the usual case, a criminal defendant argues that certain evidence to be used by the State was obtained in violation of the constitutional mandate and cannot be used against defendant in the criminal proceeding. Here, the issue is whether the judicial officer in approving a search warrant can add instructions to protect the privacy interests of the person to be searched. The issue has never been addressed directly by the U.S. Supreme Court and has rarely been addressed by lower federal courts or courts in other states.
¶ 15. While the State has argued briefly that Article 11 creates no greater power to issue ex ante instructions as part of the constitutional mandate, and the Defender General argues to the contrary urging us to ground our decision on the Vermont Constitution, this case is fundamentally about the reach of the Fourth Amendment. The judicial officer relied upon Fourth Amendment decisions in imposing the instructions, and the parties have relied upon Fourth Amendment decisions in their arguments to this Court. In part, this is because there are no state constitution precedents. To be sure, we have noted on many occasions that Article 11 "may offer protections beyond those provided by the Fourth Amendment," State v. Roberts, 160 Vt. 385, 392, 631 A.2d 835, 840 (1993), and this case could involve a variation of this principle. Our first impression, however, is that this case is less about the scope of protections of a constitutional provision and more about the tools available to ensure that protection occurs. Thus, any holding we might ultimately make concerning the scope of Article 11 with respect to ex ante instructions will be based on a new analysis of the protections of that Article. In view of our disposition of the case under the Fourth Amendment, we decline to engage in such an analysis in this case.
¶ 16. Nor do we rest our decision on Vermont non-constitutional law. While the State argued that Vermont law does not authorize a judicial officer to impose ex ante instructions, it addressed only Vermont Rule of Criminal Procedure 41. It argued that this criminal procedure rule does not authorize the magistrate to issue instructions on how the search shall be conducted. Although Rule 41 is relevant,*fn8 neither it, nor the federal rule on which it is based, purport to completely define the scope of judicial power with respect to search warrants. Thus, we are not persuaded on this limited record that Vermont law supports the State's argument and do not consider it further.
¶ 17. Before addressing the substantive claims of error raised, we briefly make three points that put our analysis in context and respond to one of the points made by the dissent. First, there are really two searches in this case--the first for the computer and the second of the computer. The first has occurred and is not in dispute; the issues relate solely to the second search. Second, the principal question before us is whether the warrant-issuing magistrate had the authority to issue the specific search instructions he did, not as the dissent suggests, whether imposing the instructions is necessary to comply with the Fourth Amendment or Chapter I, Article 11 of the Vermont Constitution. Third, the State has challenged the imposition (or effect) of the instructions in general. Assuming such instructions could be imposed and they are binding under either the federal or state constitution, the State has not argued that they were inappropriate in this case. We leave questions about the nature and extent of the magistrate's discretion in this area to another day.
¶ 18. We now proceed to the main question before us--whether a judicial officer issuing a warrant has the authority to place ex ante instructions on how a search may be conducted. We have stated the question broadly because the State has challenged the authority of the judicial officer to impose any ex ante instructions, not particularly those in this case.*fn9 We also emphasize that the general question is one of authority, and not responsibility. No party or amicus is directly claiming that ex ante instructions are ever required, and we certainly do not hold so here.
¶ 19. Under the Fourth Amendment, people are protected "against unreasonable searches and seizures." U.S. Const. amend. IV. This right is echoed in the Vermont Constitution, which protects people's right to be "free from search or seizure." Vt. Const. ch. I, art. 11. "Absent exceptional circumstances, the federal and state constitutions instruct executive officers to conduct searches pursuant to a warrant issued by an impartial magistrate." State v. Quigley, 2005 VT 128, ¶ 11, 179 Vt. 567, 892 A.2d 211. Warrants may not be granted "but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV; see Vt. Const. ch. I, art. 11 (requiring that warrants be supported by a "sufficient foundation" and with the items to be seized "particularly described"); see also United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982) (interpreting particularity requirement to mean that "a description of property will be acceptable if it is as specific as the circumstances and nature of the activity under investigation permit"). As we set out above, this case poses the question of whether a judicial officer--in carrying out his or her role of safeguarding these Fourth Amendment and Article 11 rights--may include certain ex ante instructions in a search warrant such that violation of the instructions will make the search unconstitutional.
¶ 20. In creating the instructions, the issuing judicial officer explicitly relied on United States v. Comprehensive Drug Testing, Inc. (CDT I), 579 F.3d 989 (9th Cir. 2009) (en banc). That case arose out of a 2002 federal investigation into the Bay Area Lab Cooperative (Balco), which the government suspected of providing illegal steroids to professional baseball players. That year, Major League Baseball and the Player's Association agreed to test all players to determine if more than five percent of players tested positive for steroid use. Under the agreement, the results of the testing of individual players were to be kept confidential. The samples were collected by an independent business, Comprehensive Drug Testing, Inc. (CDT), and the tests were performed by a private laboratory, Quest Diagnostics, Inc. CDT retained the list of players and their respective test results while Quest kept the specimens.
¶ 21. As part of its Balco investigation, the government developed probable cause to believe ten players tested positive for steroids. The government secured a grand jury subpoena to obtain all drug testing records and specimens in CDT's possession. The players moved to quash this subpoena. The government also obtained a warrant authorizing a search of CDT. Although the warrant was limited to the records of the ten players for whom the government had probable cause, when the government executed the warrant, law enforcement seized and reviewed the drug testing records for hundreds of baseball players as well as other individuals. Litigation ensued challenging the government's action. CDT and the players moved for return of property under Federal Rule of Criminal Procedure 41(g), and the players moved to quash the subpoena.
¶ 22. The motions were heard by three different district court judges who all ruled against the government, granting the motions to return property and quashing the subpoena. All "expressed grave dissatisfaction with the government's handling of the investigation." Id. at 994. On appeal, a panel of the United States Court of Appeals for the Ninth Circuit reversed two decisions, concluding that the government's seizure did not violate the law. United States v. Comprehensive Drug Testing Inc., 473 F.3d 915 (9th Cir. 2006). The court then granted a rehearing en banc*fn10 and upheld the district court orders, finding against the government. Following its detailed analysis of the case, the court included some "Concluding Thoughts" regarding the challenge of balancing law enforcement's need "for broad authorization to examine electronic records" with the "serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant." CDT I, 579 F.3d at 1004. Noting that it was best "if there are clear rules to follow that strike a fair balance between the legitimate needs of law enforcement and the right of individuals and enterprises to the privacy that is at the heart of the Fourth Amendment," the court outlined a list of "guidance" for magistrates to employ when issuing warrants for search of electronic devices. Id. at 1006. This included: insisting the government waive reliance on the plain view doctrine; requiring segregation or redaction of data by an independent third party prior to release to investigators; requiring the government to use a search protocol designed to uncover only information for which there is probable cause; and mandating that the government destroy or return non-responsive data. Id. CDT I emphasized the need for such restrictions to prevent government overreaching, as had occurred in that case, and to protect the privacy interests of third parties.
¶ 23. Dissatisfied, the government then moved for review by all twenty-one active judges of the Ninth Circuit, arguing that the search protocols announced in the decision were unnecessary to resolve the case, beyond the court's authority, and harmful to ongoing government investigations. Brief for the United States in Support of Rehearing En Banc by the Full Court, CDT I, 579 F.3d 989 (9th Cir. 2009) (Nos. 05-10067, 05-15006, 05-55354). In response, the initial en banc decision was revised and replaced with United States v. Comprehensive Drug Testing, Inc. (CDT II), 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam). While the revised decision retained the substantive analysis and legal outcome of CDT I, the guidelines were removed from the per curiam opinion, and instead were included in a concurrence. CDT II, 621 F.3d at 1180 (Kozinski, C.J., concurring). The instructions adopted by the judicial officer in this case are drawn from the guidelines that were set forth in CDT I and retained only in the concurring opinion in CDT II.
¶ 24. The State contends that the judicial officer in this case lacked authority to impose the instructions at issue. In the State's view, rather than authorizing a search at a particular location or for particular items, the judicial officer was attempting to dictate how law enforcement must conduct its search. In making this argument, the State draws heavily on an article written by Professor Orin Kerr following CDT I. See O. Kerr, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241, 1242 (2010). Professor Kerr argues that "ex ante restrictions on the execution of computer search warrants are constitutionally unauthorized and unwise." Id. He contends that ex ante restrictions are impermissible because they predetermine the reasonableness of a search--a matter that he contends is beyond a magistrate's authority under the Fourth Amendment.*fn11 According to this view, an issuing officer's role is only to determine whether probable cause exists to search a given location, not to determine the manner in which a search may be conducted. Drawing on Professor Kerr's argument, the State contends that the judicial officer exceeded the narrowly circumscribed role of an officer reviewing a warrant application and, thus, its instructions are not part of the constitutional mandate.
¶ 25. The permissibility of imposing the ex ante instructions on computer searches is a relatively novel question for courts generally.*fn12 What tools are at the disposal of judicial officers in confronting the challenges presented by searches of electronic media is a real and important question. As one court succinctly put it: "Computers are simultaneously file cabinets (with millions of files) and locked desk drawers; they can be repositories of innocent and deeply personal information, but also of evidence of crimes. The former must be protected, the latter discovered." United States v. Adjani, 452 F.3d 1140, 1152 (9th Cir. 2006). We are not called upon to decide today how these conflicting goals are best satisfied. Our question is not whether the judicial officer's attempt to reconcile these objectives was recommendable, much less required. Our question is simply whether this attempt was such a clear abuse of authority as to merit our prohibition in the context of this petition for extraordinary relief.
¶ 26. In this light, we reject the State's invitation to hold that all ex ante restrictions on the execution of a search warrant are universally of no effect in defining the constitutional requirement. Although the historical record is sparse at this point, we see no bright line that allows some conditions, but not ones that specify how law enforcement officials must conduct their search. Indeed, the evidence from Vermont suggests that such ex ante instructions have been used in the past. See discussion supra note 8.
¶ 27. We conclude that ex ante instructions are sometimes acceptable mechanisms for ensuring the particularity of a search. According to Professor Kerr's argument, which the State would have us adopt, a judicial officer's only concern ex ante should be with probable cause and particularity, not reasonableness. Kerr, supra, at 1290-91 ("[E]x ante assessment of probable cause and particularity serves a different function than ex ante assessment of how a search should be executed."). Accepting arguendo that such a bright dividing line exists, ex ante instructions may be a way to ensure particularity. Even in traditional contexts, a judicial officer may restrict a search to only a portion of what was requested--a room rather than an entire house, or boxes with certain labels rather than an entire warehouse. In other ...