Mar 222013
 March 22, 2013  Posted by  Court, Surveillance, U.S.

Orin Kerr writes:

I have blogged a few times about the significant Vermont Supreme Court case on ex ante search restrictions for computer warrants, In re Appeal of Application for Search Warrant. For prior posts, see here and here. Last week, Vermont filed a petition for certiorari in this case. I have posted a copy of the cert petition here.

As readers may recall, the Vermont case involves whether magistrate judges have the power to impose ex ante search restrictions on warrants. Some individual magistrate judges have begun to condition the issuance of warrants to search computer warrants on specific conditions on how the warrant is to be executed. The magistrate in the Vermont case followed the Ninth Circuit’s controversial decision in United States v. Comprehensive Drug Testing (“CDT“) and refused to issue the warrant unless the government agreed to a comprehensive set of conditions including that the government agree to waive plain view. In the Vermont Supreme Court case, the court struck down the condition of waiving plain view as improper but upheld the remaining CDT restrictions. However, the court rejected my view, articulated in my 2010 article Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010), that all such restrictions are improper and that the law of executing searches should be developed ex post by appellate courts rather than ex ante by each individual magistrate judge.

Read more on The Volokh Conspiracy.

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