The digital era has redefined evidence "staleness." The evidence that law enforcement often claims needs to be grabbed quickly (and, often, violently) to save it from destruction is the same evidence that could conceivably live on forever if never subjected to a concerted destruction effort.
Back in 2012, Judge Posner detailed this shift in inadvertent evidence preservation in the US v. Sevier decision:
“Staleness” is highly relevant to the legality of a search for a perishable or consumable object, like cocaine, but rarely relevant when it is a computer file. Computers and computer equipment are “not the type of evidence that rapidly dissipates or degrades.” United States v. Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010). Because of overwriting, it is possible that the deleted file will no longer be recoverable from the computer’s hard drive. And it is also possible that the computer will have been sold or physically destroyed. And the longer the interval between the uploading of the material sought as evidence and the search of the computer, the greater these possibilities. But rarely will they be so probable as to destroy probable cause to believe that a search of the computer will turn up the evidence sought[.]
How long is too long? The answer is entirely open-ended. A recent decision
from a California appeals court says a 23-year gap between the crime and the search warrant doesn't render the evidence "stale."
A reopened "cold case" investigation into the apparent murder of a Los Angeles police officer resulted in the issuance of warrant in 2009 to search the defendant's current possessions, including the computer she didn't own (if she even had one) back in 1986.
The defendant moved to suppress the evidence, but the court said her "staleness" argument didn't apply. (But the "good faith exception" did... [It almost always does
.]) Both warrants were extremely broad.
The first permitted authorities to search appellant’s residence and several vehicles registered to her. It sought electronically and digitally stored material, documents, and records related to the homicide, Rasmussen or Ruetten, including “letters, diaries, journals, writings, newspaper articles, books, correspondence, [or] greeting cards”; photographs of Ruetten and Rasmussen; items that may have belonged to Ruetten or Rasmussen; information identifying persons “who may have associated with or [may] have known” Ruetten, Rasmussen or appellant; medical or dental records tending to establish whether appellant received treatment for injuries after February 24, 1986; “bills, receipts, papers, reports or forms” from 1986 generally; and all .38/.357 caliber firearms in appellant’s possession.
The second warrant, issued by a different magistrate, gave permission to search the “computers, storage media, computer hardware and digital evidence” seized pursuant to the first warrant, including “[email], internet browsing histories, cached information, partially deleted files, records, receipts, screen captures, photographs, logs, [and] printouts.”
The lower court had some issues with the breadth of the warrants, but managed to talk itself out of its queasier feelings.
The court agreed there was a plausible argument for overbreadth in the requests to search for “bills, receipts, paper or reports or forms from 1986” and for the names of all “people who may have associated with” Rasmussen, Ruetten or appellant. The court was “uncomfortable” with the request to search appellant’s computers because they were unlikely to have been in existence at the time of the crime.
It also suggested it had no business telling magistrate judges how to do their jobs.
However, the court concluded that warrants should not be read in a hypertechnical way and that it was up to the issuing magistrates to tell the detective to “‘tighten [the] language’” or “beef it up.”
The defendant argued that there was no "nexus" between the original crime and her current residence, not to mention the fact she had no computer back in 1986, so any search of her current computers was predicated on an unsupported assumption that these would contain evidence related to the 1986 murder.
The appeals court didn't find either argument persuasive. It pointed out that, while both warrants were broad, they were supported by probable cause. And, more importantly, the lack of a "bright line" measurement for "staleness" -- along with the common use of computers as "permanent" storage of copies of physical items -- allowed for this sort of search, despite the length of time elapsed since the initial investigation.
With respect to her contention that her move from one residence to another precluded a finding of a nexus between her current home and the evidence sought, the warrants specifically sought photographs, journals and diaries. A person does not normally discard such items, even after several moves.
That handles the physical "nexus" argument. Here's the court on the digital end of it:
Appellant claims that the warrant was overbroad in granting permission to search her computers, as there was no evidence she owned any of them at the time of the homicide. The fact that she may not have owned those computers at the time of the crime did not preclude the possibility that she had transferred information or records -- particularly photographs -- to computers owned at the time of the search. (Cf. Arkansas Chronicle v. Easley (E.D. Va. 2004) 321 F.Supp.2d 776, 795 [recognizing that photographs and video preserved in computer format are “easily transferrable”]; U.S. v. Christie (10th Cir. 2013) 717 F.3d 1156, 1164 [observing that personal computers often hold “diaries, calendars, files, and correspondence”].)
Now that the near-permanence of digital evidence is ensured by long-lasting storage and even longer-lasting cloud service backups, "staleness" is no longer an issue. But while that may give law enforcement a pass of serve search warrants years after alleged criminal activity occurred, it should also factor into discussions about warrantless searches based on exigent circumstances.
The government argued
in the Riley
case that the omnipresent "threat" of evidence destruction necessitated instant, warrantless access to arrested suspects' cellphones. (This was presented to the court without any supporting evidence that automated wiping or other uncontrollable evidence destruction had occurred with any frequency). But the opposite actually seems closer to reality: whatever is on a cellphone (or someone's computer) will last almost indefinitely unless a person makes active, time-consuming efforts to thwart evidence recovery.
From Posner's 2012 opinion:
When you delete a file, it goes into a “trash” folder, and when you direct the computer to “empty” the trash folder the contents of the folder, including the deleted file, disappear. But the file hasn’t left the computer. The trash folder is a waste paper basket; it has no drainage pipe to the outside. The file seems to have vanished only because the computer has removed it from the user interface and so the user can’t “see” it any more.
Most people never make it past "Empty Recycling." Even though plenty of options exist for common users to ensure deleted files are actually deleted (read: overwritten), Posner points out that "use of such software is surprisingly rare." This coincides with the very low number of incidents where law enforcement has run into the use of automated tools to destroy digital evidence. And yet, the government insisted the possibility
of evidence destruction should allow it to warrantlessly search cellphones and other devices at the time of arrest.
But it really shouldn't get to have it both ways. Either there's a good chance the evidence sought is intact -- and will be for possibly decades to come -- or it's all vanishing before it can get its hands on it, in which case the argument for "staleness" must be addressed in more detail.
Fortunately, the Supreme Court has put an end
to law enforcement's insistence it must have access right now
. That's good news, especially when combined with the unavoidable conclusions courts will reach when dealing with storage options that preserve evidence for years. The government can't be allowed to claim there's no time to get a warrant when it's readily apparent they have all the time in the world.