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Confronting Potential Injustice with Preemptive Suppression
Authors: Robert Vose Simpson
Number of views: 308
Vermont state prosecutors have asked the Vermont Supreme Court to end a state trial judge’s practice of attaching conditions to computer warrants. The Vermont judge’s conditions are drawn from five conditions established in the 2009 decision of the 9th Circuit Court of Appeals in the Comprehensive Drug Testing, Inc. case (CDT II). This is the first time the validity of the “CDT conditions” will be decided by a state court of final jurisdiction in the United States.
The CDT II majority reacted to what it termed “an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause.” Determined “to guard against such unlawful conduct in the future ”,Chief Judge Alex Kozinski, author of the majority opinion, set out five conditions, or “guidance, ” that magistrate judges were to require law enforcement officers to agree to, before the judge signed a computer warrant. The 9th Circuit withdrew these conditions from the majority opinion in September 2010 (CDT III). But, it reaffirmed its conclusion that government agents had violated the Fourth Amendment to the United States Constitution in the CDT case. And, it repeated its concern that the “pressing need of law enforcement for broad authorization to examine electronic records … creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.”