Well the execution of search warrants is in the digital press again. The Plain View Doctrine allows for the seizure of evidence without a search warrant generally because of the nature of the evidence. Two court rulings are of interest when it comes to being secure in our papers and property. In United States v. Comprehensive Drug Testing, Inc.¹ the 9th Circuit Court of Appeals correctly upheld a decision stating federal agents went beyond the scope of their authority in the execution of a search warrant at a medical laboratory. In another matter relating to execution of a search warrant on an Internet Service Provider (ISP), District Judge Mosman² discussing emails stored at an ISP and application of the Stored Communications Act stated that the notice requirement was fulfilled by giving notice to the ISP and not the email subscriber(s).

The 9th Circuit Court of Appeals of the Western District applied the Tamura Precedent³ eliminating law enforcements' use of the Plain View Doctrine during execution of search warrants relating to digital evidence. This court did support the lower court’s exercise of civil equitable jurisdiction to protect a non-defendant business preserving the integrity of its business and the protecting the privacy and economic well-being of a businesses' clients. The courts' civil equitable jurisdiction is seldom discussed. Generally, search warrant enhanced protection discussions involve attorneys, doctors, clergy, and book authors. Federal agents must use pinpoint accuracy when executing search warrants on non-defendant premises.

In another third-party context, District Judge Mosman discussed: 1. does Rule 41(f)(1)(C) apply to warrants issued under § 2703(a) and 2. if so, does leaving a copy of the warrant with the service provider satisfy the requirements of Rule 41(f)(1)(C) when the warrant is for the contents of stored e-mails? Judge Mosman held that Rule 41(f)(1)(C) does apply to warrants issued under § 2703(a) and is satisfied by providing a receipt to the ISP. However, because no property was actually taken in this case, Rule 41(f)(1)(C) does not require that a receipt be provided. In further discussion he stated there are three ways to fulfill Rule 41(f)(1)(C)'s requirement: 1. a copy of the warrant and a receipt may be given to the owner of the property searched and/or seized; 2. a copy of the warrant and a receipt may be given to the person from whose premises the property was seized, even if they are not the owner of the property; or 3. a copy of the warrant and a receipt may be left where the property was seized. Some interesting discussion centers on the fact that “no property was taken”, apparently the digital evidence was recovered but is not considered the taking of property. The court's discussion centers on property rights and not privacy rights.