RETHINKING WHAT’S “IN PLAIN VIEW”
Lawyers who litigate criminal cases have dealt wih the contours of the plain view doctrine for years now. We all know that if a police officer executes a search warrant for illegal weapons and finds drugs lying on the front porch, they’re fair game. But in a ruling today, April 11, the Court of Appeals extends this doctrine to a place most causal observers might not consider so “plain.”
In Rosa v. Commonwealth , the court addresses a motion to suppress in a case that started out as an investigation into, among other things, controlled substances. After getting a lead from a University of Richmond coed that Rosa had contacted her online and had made references to such substances, police arrested him and executed a search warrant for his computer. The seized the machine and turned it over to a cyber-jock on the police force for analysis.
The investigator was good at his craft. While searching for text messages, he knew enough to look in .jpeg files, usually associated with photographs, since clever crooks can hide text in such files, thinking the police would never look there. This investigator did, indeed, find some such hidden text messages. But when he looked in one such .jpeg file, he found photographs he believed to be child pornography. He immediately stopped and got another warrant for that kind of information, which led to this prosecution.
The interesting thing about this “hit” is that the pornographic files had been deleted from Rosa’s hard drive; the police found them by using a program that reconstitutes deleted files. On the principal issue, whether the original warrant justified the search of .jpeg files, it’s easy to side with today’s unanimous panel; the investigator’s testimony easily established the likelihood of finding text there, and he did, indeed, succeed based on this insight. The harder part to swallow is the court’s second finding in the case, based on the plain view doctrine.
Today, the court finds that a computer file that has been deleted, and that can only be accessed by seizing a computer, handing it to a forensic computer expert, turning it on, installing special software designed to reveal deleted files like so much disappearing and reappearing ink, and then calling up images that would be unavailable to ordinary computer users (including, ironically, Rosa) is nevertheless in “plain view,” and thus the proper subject for seizure for the purposes of prosecution. I’ll venture to say that most people would not have seen that one coming — at least not in plain sight.