Golden Gate University Law Review


Susan A. Rados


This Note examines United States v. Payton and the issue of when it is reasonable to search a computer if it is not expressly authorized on the search warrant. Part I discusses the background facts of Payton and the Fourth Amendment. Part II analyzes why the Ninth Circuit ultimately decided Payton correctly but focused on the wrong underlying reason in its holding. The reasonableness standard for computer searches should be whether the computer “could” contain the evidence, rather than the stricter standard of “would” contain the evidence announced in Payton. However, because computers are different from traditional containers, they should be subject to judicial supervision and a defined search protocol as expressed through a warrant. Part III explains how the Ninth Circuit in Payton ultimately did what it had said it would not do in United States v. Giberson: create a distinctive category for computers separate from traditional containers and imply a bright-line rule mandating that a computer may not be searched without a warrant. Part IV proposes a practical reasonableness standard that balances the special needs of a computer search with the flexibility found under traditional container theories of searches and seizures. This Note proposes a specific set of guidelines to establish a protocol for properly seizing a computer that will effectively balance the government’s interest in searching and seizing a computer with the computer owner’s privacy interests.

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