Just how “particular” must a warrant to search a Gmail and Yahoo! Mail be in order to survive the Fourth Amendment’s “particularity” requirement? And does the answer change when the warrant is for searching the email accounts of someone other than the person suspected of the crime described in the warrant? In this split opinion the majority upheld broad search warrants requiring Google and Yahoo to turn over email expected to show that one former Walker aide had committed a crime, but which showed that the account owner (another former Walker aide) had also committed a crime.
The Milwaukee County DA launched a John Doe investigation of potentially prohibited political activities conducted by Scott Walker’s aides and appointees back when he was Milwaukee County Executive. Tim Russell, Walker’s then Chief of Staff, was one of the targets. Rindfleisch initially was not. The search warrant at issue in this case sought, among other things, emails between Rindfleisch and Russell on Rindfleisch’s Google and Yahoo email accounts. The warrants state that the search was to be for evidence of two crimes: misconduct in public office and political solicitations involving public officials and employees.
Both Yahoo and Google responded by providing the DA with CDs containing Rindfleisch’s emails and contact lists for the time period in question. They both explained that they had redacted all information that exceeded the scope of the search warrant. Based on what remained, the DA wound up charging Rindfleisch with misconduct in public office. She moved to suppress all evidence obtained from the search warrants.
Wis Stat. § 968.375 authorizes warrants for email records held by computer service providers like Google and Yahoo. Rindfleisch argued that the warrants here were “general” thereby violating the 4th Amendment’s “particularity” requirement, and thus § 968.375 is unconstitutional as applied to her case. The warrants, she said, permitted the State to conduct a fishing expedition without any procedures or screens in place to prevent prosecutors from reviewing privileged or sensitive information.
The majority (Judges Curley and Kessler) had no trouble finding that the warrants satisfied all the requirements of the requirements of the Warrant Clause: (1) They were authorized by a neutral, detached judicial officer. (2) They were supported by affidavits showing probable cause that the evidence seized would show that Tim Russell had committed misconduct in public office. (3) They identified Google and Yahoo by name and address, specified the relevant time period, and indicated that it applied to all information associated with the specific accounts listed in the warrant and identified the account owners or controllers. See State v. Sveum, 2010 WI 92, ¶20, 328 Wis. 2d 369, 787 N.W.2d 317.
Both Rindfleisch and the State requested publication of the court’s decision, a sign of the dearth of Wisconsin case law on point. Indeed, the majority relied most heavily on U.S. v. Adjani, 452 F.3d 1140 (9th Cir. 2006), which upheld a warrant to search electronic files on a person’s hard drive even though he was not a suspect in the crime under investigation. That’s what bothered Judge Fine, the dissenter. He stressed that the warrant did not set out probable cause that Rindfleisch herself had committed a crime. And the 4th Amendment prohibits the government from rummaging through her voluminous files to see if Russell committed a crime and if Rindfleisch herself might have also committed a crime. Rindfleisch had some 16,000 documents on her emails accounts, but only a handful implicated her in a crime. So it’s not like the authorities stumbled onto evidence of her misconduct.
The problem, in Judge Fine’s view, is that there is no way to ascertain the contents of an electronic file or folder before opening it. Once the government opens the file, it can argue that the contents were in “plain view” and admissible even if they implicate the defendant in a crime not covered by the warrant. See U.S. v. Galpin, 720 F.3d 437, 447 (2d Cir. 2013). Rindfleisch’s creative defense lawyers (Frank Gimbel and Kathy Keppel) urged the court of appeals to require a “filter agent” when authorities search vast amounts of electronic data much of which is beyond the scope of their warrant. The “filter agent” weeds out confidential and irrelevant documents before the authorities conduct their review. See In the Matter of USA’s Application for a Search Warrant to Search and Seize Electronic Devices from Edward Cunnius, 770 F. Supp.2d 1138 (W.D. Wash. 2011).