[Orin Kerr] Peffer v. Stephens, on Probable Cause and Home Computer Searches

The Volokh Conspiracy 2018-01-20

Summary:

On Thursday, the Sixth Circuit decided a Fourth Amendment case that is drawing a lot of criticism online. The case, Peffer v. Stephens, is authored by a new and somewhat controversial Trump appointee, John K. Bush. A few people have asked me to take a look at the case, wondering if it's as crazy and extreme as some (okay, Slate's Mark Stern) say.

My tentative take: I think the court reached out to answer a big question it didn't have to answer. I'm skeptical that the court was right to paint with such a broad brush. With that said, I don't think the decision is as far-reaching or harmful as others seem to think, in part because I suspect future courts will limit it to its facts.

I. The Facts

This case is a civil suit challenging whether there was probable cause to issue a search warrant. The police suspected that evidence of impersonating an officer and witness intimidation would be found in Peffer's house, and they obtained a warrant to search Peffer's house for that evidence. Specifically, the police suspected that Peffer had authored a letter and a flier that was evidence of the suspected crimes, and they obtained a warrant to search for and seize records relating to the crimes including in electronic form. The warrant then says that in the course of searching for those items, the government may seize and then search any computers that might store the records in electronic form.

The officers executed the warrant and took away a bunch of computers. In the end, though, prosecutors declined to prosecute Peffer. Peffer and his wife filed a civil suit, claiming (among other things not relevant here) that the warrant lacked probable cause. In particular, the Peffers mainly argued that the affidavit did not establish probable cause that evidence of the crime would be in the house for two reasons. First, the affidavit did not provide reason to beileve that the evidence described was evidence of a crime based on then-existing state law. And second, the affidavit did not make the case that the evidence described would be found in the home.

II. The Sixth Circuit's Opinion

Judge Bush's opinion treats those two arguments separately. First, the opinion rules that it was not clearly established that that the letters were not evidence of a crime. As a result, the officer "would be protected by qualified immunity from liability for executing an otherwise valid search warrant seeking evidence that Mr. Peffer violated those criminal statutes."

Next, the opinion rules that there was probable cause to believe that the evidence described would be in the house. Much (but not all) of the argument, Judge Bush says, was based on the claim "that no assertion was made that Mr. Peffer owned either a computer or a printer or, if he did, that he kept those items at the . . . residence" that was searched. The affidavit argued that the letters and fliers were computer-generated, and likely written by Peffer, and therefore that there was probable cause to find evidence about them in the Peffer house. According to the Peffers, though, there was no reason to think that Mr. Peffer had a computer at home that stored the evidence.

Judge Bush rejected the Peffers' argument. This is the passage that has generated a lot of controversy, so I will present it in full with the footnoted material in brackets:

It appears to be a question of first impression in this circuit whether the nature of a computer is such that its use in a crime is alone sufficient to justify an inference that, because of "the nature of the things to be seized," ibid., evidence of the crime is likely to be found in the alleged criminal's residence. But this question is not a difficult one to answer based on basic principles.

As a general rule, it is reasonable, ceteris paribus, to assume that a person keeps his possessions where he resides. [FN9: See, e.g., United States v. Aljabari, 626 F.3d 940, 946 (7th Cir. 2010) ("When probable cause exists to believe an individual has committed a crime involving physical evidence, and when there is no articulable, non-speculative reason to believe that evidence of that crime was not or could not have been hidden in that individual's home, a magistrate will generally be justified in finding probable cause to search that individual's home.")].This presumption is of course rebuttable and cannot always be relied upon by a magistrate in finding a nexus between the object used in a crime and the alleged criminal's residence, because the "totality of circumstances presented" in the affidavit may suggest that the object is more likely to be found elsewhere or nowhere at all. Brown, 828 F.3d at 382. The affidavit may, for example, include evidence sugge

Link:

//reason.com/volokh/2018/01/20/peffer-v-stephens-on-probable-cause-and

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Authors:

Orin Kerr

Date tagged:

01/20/2018, 05:11

Date published:

01/20/2018, 04:51