C. (§21.52) Particularity
The purpose of the particularity requirement is to prevent general warrants, which leave decisions regarding what and where to search “to the [unchecked] discretion of the executing officials.” In re Search of Info. Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., 13 F. Supp. 3d 157, 163 (D.D.C. 2014) (quoting Steagald v. United States, 451 U.S. 204, 220 (1981)) (citing Md. v. Garrison, 480 U.S. 79, 84 (1987)). The Fourth Amendment requires a search warrant to describe and identify the items to be seized with particularity. United States v. Cartier, 543 F.3d 442, 447 (8th Cir. 2008). The particularity of a search warrant is judged by a standard of “‘practical accuracy’ rather than a hypertechnical one.” Id. (quoting United States v. Summage, 481 F.3d 1075, 1079 (8th Cir. 2007)).
A peculiarity of this requirement for digital evidence warrants is the two-step procedure for seizure and search of electronically stored information set forth in Federal Rule of Criminal Procedure 41(e). The Rule authorizes “the seizure of electronic storage media or the seizure or copying of electronically stored information” but it allows “a later review of the media or information consistent with the warrant.” Fed. R. Crim. P. 41(e)(2)(B). The Advisory Committee explains that because “it is often impractical for law enforcement to review all of the information during execution of the warrant at the search location. . . . [O]fficers may seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.” Fed. R. Crim. P. 41, 2009 Advisory Committee Notes. In other words, Rule 41 specifically authorizes the seizure of “a larger pool” of digital evidence than officers have probable cause to collect, which might otherwise be deemed a per se violation of the Fourth Amendment. In re Search of Info. Associated with Facebook Account Identified by Username Aaron.Alexis that is Stored at Premises Controlled by Facebook, Inc., 21 F. Supp. 3d 1, 8 (D.D.C. 2013).
This has led to substantial litigation challenging warrants for digital evidence as overbroad. In general, courts have found that even when warrants authorize the seizure and review of a vast pool of digital information, as long as the warrant specifically identifies the crimes for which evidence may be searched, the particularity requirement is satisfied. See:
· United States v....
