Plain view doctrine applies to computer files; evidence of another crime accidentially found during proper computer search is subject to "plain view" doctrine

The “plain view” doctrine holds that when police are properly investigating one crime and evidence of another crime falls into plain view they can seize evidence of the other crime. So what if the police are properly searching a computer and come across evidence of other crimes – do they need another warrant?  Today’s decision in R. v. Jones, 2011 ONCA 632 holds not:

 

[53]         The next issue does not concern whether the warrant was “valid for purposes of doing further searches for child pornography.”  Indeed, no one ever anticipated that the warrant would encompass a search for child pornography.  The issue is the extent to which the discovery of evidence pointing to a second (and unanticipated) crime can piggy-back onto the lawful execution of a computer-search warrant directed at a different crime.  More specifically, the issue is whether, having lawfully conducted a search of data and image files for evidence of fraud, and having discovered image files containing what they reasonably believed to be child pornography, the police were:

a)     entitled to seize and utilize the image files containing child pornography to form the basis for a child pornography investigation and prosecution (a different offence than the one for which they were lawfully seeking evidence); and

b)     entitled to conduct a further examination of other computer files for further evidence of child pornography, including video files that they would not have examined in the course of their search for evidence of fraud, for the same secondary purpose.

[54]         The answers to these questions depend upon the applicability of the plain view doctrine and of s. 489 of the Criminal Code to the facts of this case.

[55]         The Crown submits the plain view doctrine and/or s. 489 of the Criminal Code justify both the search and seizure of the images of child pornography discovered by Sgt. Rumnyak during his first review of the computer files and of the videos of child pornography found in the subsequent search.  I agree that they justify the former, but do not accept that they justify the latter.

[56]         The “plain view” doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfully authorized search with respect to one crime and evidence of another crime falls into plain view.  Resort to this common law power is subject to the following restraints, however:

(i) The officer must be lawfully in the place where the search is being conducted (“lawfully positioned”, in the language of the authorities);

(ii)  The nature of the evidence must be immediately apparent as constituting a criminal offence;

(iii) The evidence must have been discovered inadvertently;

(iv) The plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes.

See generally, R. v. Spindloe (2001), 154 C.C.C. (3d) 8 (Sask. C.A.), at pp. 29-37; R. v. Fawthrop (2002), 166 C.C.C. (3d) 97 (Ont. C.A.), at paras. 28-34; Law, supra¸ at para. 27, and the authorities cited therein.

[57]         Section 489 of the Criminal Code states:

(1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

(a) has been obtained by the commission of an offence against this or any other Act of Parliament;

(b) has been used in the commission of an offence against this or any other Act of Parliament; or

(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[58]         Both the common law plain view doctrine and the statutory s. 489 provisions are exceptions to the general rule that a warrantless search is unreasonable and, therefore, a violation of s. 8.  Some have suggested that s. 489 is a codification of the plain view doctrine.  I note that Borins J.A. expressed doubt about that proposition in Fawthrop, at para. 22.  While it is not necessary to decide that issue here, I, too, am not persuaded that such is the case.  See also R. v. E.B., 2011 ONCA 194, at paras. 75-78.

[59]         Whether the plain view doctrine should apply in circumstances involving a computer search has been a matter of much debate.  The debate has centred on the intrusive nature of computer searches and the somewhat awkward fit between traditional search and seizure concepts and computer technology.  In R. v. Bishop, 2007 ONCJ 441, for example, R.D. Clarke J. posed an example which is the converse of this one, namely, where police are searching for evidence of child pornography but come across evidence relating to an otherwise unknown fraud.  At para. 37 he observed that “the concepts of plain view would seem to provide the police with a legitimate justification for their conduct,” but commented that there was, in his view, “good reason to question whether this approach [would] survive.”  He went on to frame the concern in this way, at paras. 38-39:

The search and seizure of mass storage devices tests the “reasonableness” of plain view when applied to the context of computer crime investigations.  Justifiable searches will often require sweeping examinations of all data on a hard drive.  Where the circumstances of the particular investigation justify such a wide-ranging search (for example, where evidence suggests that the target of the search has used “countermeasures” to secrete seizable data in or disguised as, other files), then no issues should arise.

Where, however, police routinely seize and review all material on a hard drive, even if they know only a small percentage is likely to be responsive to the warrant then constitutional issues are engaged.  So far as I am aware at present these issues remain unresolved.

[60]         In the United States there has been a similar discussion. United States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009), revised, 621 F.3d 1162 (9th Cir. 2010), is perhaps the fullest example of the debate.  There, the federal government was conducting an investigation into the use of steroids by professional baseball players.  The Major League Baseball Players Association agreed that players would submit to urine samples solely for the purpose of determining the percentage of positive results; the results themselves were to remain confidential.  When ten players tested positive, however, the government obtained warrants to obtain information from private entities that had collected the samples and information.  Comprehensive Drug Testing Inc. was one of those entities.  The warrants were limited to information about the ten players respecting whom there was probable cause to believe had engaged in steroid use; however, the government seized and reviewed drug testing records of hundreds of players and many other people stored on the computers of the drug-testing providers.  The warrants were quashed and the seized property ordered returned.

[61]         The government was successful on its initial appeal to the Ninth Circuit; however, the judges of that court agreed to re-hear the case en banc.  After the en banc hearing, the judges split on whether the state should be able to rely upon the plain view doctrine in cases involving a computer search.  Indeed, the court took the unusual position of issuing a revised en banc opinion a year later, in which it appears to have softened its first (majority) view that the government should “forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data” (p. 998).  In a sentiment somewhat similar to that expressed by Fish J. in Morelli, the majority in the first en banc opinion justified that view by framing the risks in this way, at pp. 998 and 1004-1005:

The point of the Tamura^[5] procedures is to maintain the privacy of materials that are intermingled with seizable materials and to avoid turning a limited search for particular information into a general search of office file systems and computer databases.  If the government can`t be sure whether data may be concealed, compressed, erased or booby-trapped without carefully examining the contents of every file – and we have no cavil with this general proposition – then everything the government chooses to seize will, under this theory, automatically come into plain view.  Since the government agents ultimately decide how much to actually take, this will create a powerful incentive for them to seize more rather than less: Why stop at the list of all baseball players when you can seize the entire Tracey Directory?  Why just that directory and not the entire hard drive?  Why just this computer and not the one in the next room and the next room after that?  Can’t find the computer?  Seize the Zip disks under the bed in the room where the computer once might have been. ... Let’s take everything back to the lab, have a good look around and see what we might stumble upon.^[6]

[62]         The majority went on later to elaborate on this general theme, at pp. 1004-1005:

The problem can be stated very simply: There is no way to be sure exactly what an electronic file contains without somehow examining its contents – either by opening it and looking, using specialized forensic software, keyword searching or some other such technique.  But electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed.  By necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there.

Once a file is examined, however, the government may claim (as it did in this case) that its contents are in plain view and, if incriminating, the government can keep it.  Authorization to search some computer files therefore automatically becomes authorization to search all files in the same sub-directory, and all files in an enveloping directory, a neighboring hard drive, a nearby computer or nearby storage media.  Where computers are not near each other, but are connected electronically, the original search might justify examining files in computers many miles away, on a theory that incriminating electronic data could have been shuttled and concealed there.

[63]         Not all U.S. courts have accepted the Comprehensive Drug Testing Inc. approach to plain view, however.  For example, United States v. Williams, supra, involved an authorized search for evidence of the crimes of threatening and computer harassment during which evidence of child pornography was found and seized.  In upholding the seizure, the Fourth Circuit Court of Appeal acknowledged the proper application of the doctrine in the computer search context, explaining it is this way (at p. 522):

Once it is accepted that a computer search must, by implication, authorize at least a cursory review of each file on the computer, then the criteria for applying the plain-view exception are readily satisfied.  First, an officer who has legal possession of the computer and electronic media and a legal right to conduct a search of it is “law-fully present at the place from which evidence can be viewed,” thus satisfying the first element of the plain-view exception.  Second, the officer, who is authorized to search the computer and electronic media for evidence of a crime and who is therefore legally authorized to open and view all its files, at least cursorily, to determine whether any one falls within the terms of the warrant, has “a lawful right of access” to all files, albeit only momentarily.  And third, when the officer then comes upon child pornography, it becomes “immediately apparent” that its possession by the computer’s owner is illegal and incriminating.  And so, in this case, any child pornography viewed on the computer or electronic media may be seized under the plain-view exception. [Emphasis in original; citations omitted.]

[64]         In the foregoing debate, I prefer the general view articulated by the Fourth Circuit.  As noted above, this Court adopted the “cursory review” approach in Manley, supra, where the police conducted a cursory search of a cell phone seized incident to arrest.  Moreover, I do not think it can be said that, because information on a computer is not visible to the human eye, but requires the use of a software program to access it, it is not in “plain view.”  Once a file is opened by the computer programmer using the software, its contents can be read, and “plain view” comes into play, as the court noted in Williams.

[65]         Here, I am satisfied that the Crown’s reliance on the child pornography found in the image files discovered in the course of the initial search for fraud-related evidence in this case does not violate s. 8.  Sgt Rimnyak was lawfully examining the image files under the warrant when he unexpectedly saw images that were immediately recognizable as images of child pornography.  Thus, his detection of the child pornography images in those files met all the requirements of both the plain view doctrine and s. 489 of the Criminal Code.  He was entitled to seize them.