- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Law
- Date Filed: 09-18-2013
- Case #: 11-30311
- Judge(s)/Court Below: Circuit Judge McKeown for the Court; Circuit Judges Gilman and Ikuta
- Full Text Opinion
About 3,400 images and 632 videos were recovered from Joseph Schesso’s home. Schesso moved to suppress all evidence and incriminating statements, relying on the procedural safeguards of United States v. Comprehensive Drug Testing, Inc. (CDT III), which concerned portable electronic devices and the unique issue they create for balancing the privacy rights of the individual with those of the government. Due to the fact that electronic devices can contain large amounts of intermingled information, there is a higher probability that the seizure will be overbroad. CDT III held that the reality of over seizure required a greater judicial vigilance and/or precautionary search protocols to ensure probable cause. Schesso argued that the lack of specific instruction as to how to limit the search of the intermingled data on the devices seized required suppression. Because Schesso had distributed child pornography, the judge who issued the original warrant concluded that there was a fair probability that Schesso had other child pornography on his computer. The Ninth circuit affirmed that a “fair probability” amounts to probable cause and reversed the trial judge's granting of Schesso's motion to supprees. The panel rejected the argument that the warrant was stale. If there is a continuing pattern or other good reason that the items to be seized are still on the premises, the warrant is not stale. The second issue was the absence of search protocol. However, this case did not involve preventing the government from bringing constitutionally protected data into plain view after large amounts of data had been seized. This case involved a warrant that seized only those devices which there was probable cause to do so. Therefore, there was no harm from the lack of a precautionary search protocol such as that outlined in CDT III. REVERSED.