James H. Barrett, the attorney for David Burgess, who owns the Old Bridge Ranch brothel located east of Reno, argued that the government’s search of Burgess’ laptop computer following a traffic stop last summer violated the 4th Amendment to the U.S. Constitution, as well as Article 4 of Wyoming’s state constitution.
According to court documents, Barrett was pulled over by Wyoming Highway Patrol Trooper Matthew Arnell in July 2006 while driving a motor home that was pulling a trailer that had expired Wyoming license plates. While Arnell was writing up a citation for the expired plates, a sheriff’s deputy from Uinta County arrived on the scene with a canine unit and “took a tour around the Freightliner and trailer,” according to the defense motion to suppress.
The deputy’s dog “alerted to the driver’s door of the motor home,” prompting Arnel to ask Burgess and his passenger if there were any illegal narcotics or other property in the motor home that they didn’t want the trooper to know about. The men answered that there was not. Arnell then told Burgess and his passenger that he intended to search the motor home.
According to court documents, Burgess “told Trooper Arnell that he needed to get a search warrant,” and no consent to search was given. Arnell and the sheriff’s deputy proceeded to search the motor home anyway, eventually turning up what they believed to be a “marijuana pipe,” a zip lock bag containing a small amount of marijuana and a stainless steel cup containing “approximately three grams of white powder,” as well as a duffel bag with an unspecified quantity of marijuana.
Burgess was placed in custody and a search warrant was sought based on the proceeds of the initial search of the motor home. According to court documents, the warrant asked “permission to search the [motor home] and trailer during the daylight hours for evidence of controlled substances or dealing in controlled substances. It also sought to include computer records, as well as "items of personal property which would tend to show a conspiracy to sell drugs."
During the subsequent search, a Compaq laptop, Seagate external hard drive and a Maxtor external hard drive were seized from the motor home. The laptop and hard drives were then transported to Cheyenne, where a forensic examination began on Aug. 1. After conferring with staff attorney concerning the scope of the warrant issued in the case, an investigator began previewing the contents of the Maxtor hard drive that revealed “multiple images of child exploitation.”
Based on that finding, additional warrants were applied for and obtained authorizing search of the laptop and external hard drives. The searches stemming from those warrants produced more evidence of child exploitation, and the entry of child pornography possession and transportation charges against Burgess.
In his motion to suppress the evidence against Burgess, Barrett argued that the initial search warrant issued in the case was so broad that it violated the 4th Amendment’s requirement that warrants shall “particularly describe the place to be searched and the persons and things to be seized.”
“The warrant in this case and in that part relevant to this motion allows the seizure of a broad and nearly unlimited category of property,” Barrett argued. “Such property is described as ‘computer records’ and ‘items of personal property which would tend to show a conspiracy to sell drugs.’ Nowhere in the application for the warrant or the warrant itself was there authorization to seize or search computers, hard drives, discs, tapes or other peripherals.”
Citing U.S. vs Carey, Barrett noted that in structuring search warrants seeking evidence contained on a computer, “[o]fficers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant.”
“[I]n this particular case, there was no protocol governing the search of the unlawfully seized laptop and hard drives,” Barrett wrote. “Indeed [the computer forensic examiner] waited to receive the warrant then ‘conferred with’ a staff attorney with regard to the ‘scope of the search warrant.’ There is no report of the content of the conversation or the advice given in that regard. There is certainly no report describing the protocol or methodology employed in staying within the ‘scope’ of the warrant. [The forensic examiner] describes his search of the external hard drives as ‘acquiring and previewing evidence’ a description which utterly fails to describe the methodology employed in narrowing the scope of the search to suspected drug possession and/or distribution.”
Prosecutors have not yet responded to Barrett’s motion to suppress the evidence.