Federal criminal copyright cases seem to be on the rise in the EDCA and nationwide. In the EDCA, Judge Karlton sentenced a Sacramento man to 18 months imprisonment for selling copyrighted DVDs at his area Music Land stores. Sacramento Business Journal, 8/10/11. Elsewhere, I was intrigued by this post at Fourth Amendment.com, which describes the W.D. Wash. court's rare published denial of the government's application for a search warrant seeking evidence of copyright infringement for all of the target's computers and electronic devices without a filter team and by refusing to foreswear use of the "plain view" doctrine. See In re United States’s Application for a Search Warrant to Seize and Search Electronic Devices from Cunnius, 2011 U.S. Dist. LEXIS 87654 (W.D. Wash. February 11, 2011):
This matter comes before the Court on the government’s application for a warrant to search the residence of Edward Cunnius, to seize any computers or digital devices (collectively “digital devices”) that may be located at the premises, and to search all electronically stored information (“ESI”) contained in any digital devices seized from Mr. Cunnius’ residence for evidence relating to the crimes of copyright infringement or trafficking in counterfeit goods. Specifically, in addition to the search of the residence and the seizure of digital devices, the application requests the authority for investigative officers to: (1) search all ESI contained in Mr. Cunnius’ digital devices and related to the use of the devices; (2) conduct the search without segregation by a filter team; (3) conduct the search without foreswearing the plain view doctrine; and (4) permit investigative agents to obtain a second warrant if, during the search of the ESI, the investigating and searching agents find evidence of crime outside the scope of the instant warrant. On February 7, 2011, the Court advised the Assistant United States Attorney (“AUSA”) that the warrant, as presented, would not be granted. The United States has refused to accede to the Court’s view that a filter team and forswearing reliance on the plain view doctrine are appropriate, and indeed, required in this specific case. Accordingly, the AUSA requested the Court to file a memorandum opinion, so that the government can appeal. A copy of the requested warrant and affidavit in support is attached as Exhibit 1. That request has led to this opinion.
Because the government, in this application, refuses to conduct its search of the digital devices utilizing a filter team and foreswearing reliance on the plain view doctrine, the Court DENIES the application as seeking an overbroad or general warrant in violation of the Fourth Amendment and the law of this Circuit.
