Legal Commentary

"Howling Pig" Author Wins Another Round

By Jeralyn

Back in 2004, we reported on Thomas Mink, a student at the University of Northern Colorado who had his residence searched and computer seized following the publication of an online satirical editorial related to a professor. Charges were never filed. The search warrant was found to be invalid.

The case has gone back and forth through the courts regarding whether the prosecutors were immune from civil liability in lawsuit for violating his civil rights. Yesterday, he won another round.

The trial court had dismissed his case as to the prosecutor, and he appealed. The Tenth Circuit Court of Appeals yesterday issued an opinion, available here, reinstating his Section 1983 lawsuit against the former District Attorney who approved the search. [More...]

The issue was whether the district court erred:

on the basis of qualified immunity, Mr. Mink’s claim alleging an unlawful search and seizure in violation of the Fourth Amendment, where the search lacked probable cause because clearly-established First Amendment law protected Mr. Mink’s speech, and because the overbroad affidavit and warrant violated clearly-established Fourth Amendment law.

It's a good decision, particularly with respect to the particularity requirement for search warrants for computers.

In United States v. Otero, 563 F.3d 1127 (10th Cir. 2009), we recognized that [t]he modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and accordingly makes the particularity requirement that much more important. See, e.g. United States v. Riccardi, 405 F.3d 852, 863 (10th Cir. 2005) (warrant authorizing general search of computer invalid as it permitted officers to search anything “from child pornography to tax returns to private correspondence”); United States v. Carey, 172 F.3d 1268, 1272 (10th Cir.1999) (computer search for files pertaining to distribution of controlled substances uncovered child pornography).

Id. at 1132. We therefore held that “warrants for computer searches must affirmatively limit the search to evidence of specific . . . crimes . . . .” Id. (quoting Riccardi, 405 F.3d at 863 (emphasis added)).

...The warrant authorized the search and seizure of all computer and noncomputer equipment and written materials in Mr. Mink’s house, without any mention of any particular crime to which they might be related, essentially authorizing a “general exploratory rummaging” through Mr. Mink’s belongings for any unspecified “criminal offense.” See Campos, 221 F.3d at 1147; see also Cassady, 567 F.3d at 637 (holding that a warrant permitting “search for all evidence of any crime [is] invalid.”).11 No paragraph tied the listed items to any particular crime. The warrant was therefore clearly invalid under the particularity clause of the Fourth Amendment.

So the First and Fourth Amendment survive another week in the Tenth Circuit.

Full post as published by TalkLeft on July 20, 2010 (boomark / email).