What Alex Kozinski and the Investigation of Earl Bradley Teach About Searching and Seizing Computers and the Dangers of Inevitable Discovery
Stephen E. Henderson
University of Oklahoma College of Law
January 4, 2012
19 Widener L. Rev. 115 (2013)
This paper tells two stories. One concerns the investigation of a Delaware physician named Earl B. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems, both judicial and extra-judicial, of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Though in a sense unrelated, they share lessons about the practicalities of computers and their search that are worth telling. As courts continue to struggle with how to cabin the searches of computers in order to minimize privacy intrusion while permitting effective law enforcement, as defense attorneys challenge such searches, as prosecutors defend those searches, and as police seek permission for and execute those searches, some anecdotal wisdom might go a surprisingly long way.
Part I introduces the Bradley investigation and the Kozinski decisions. Part II then analyzes the two Bradley search warrant applications, eliciting what might have caused the second to issue after the first was denied. It confirms the platitude that less sometimes really is more, meaning that police might doom an entire warrant application by making unsupported and unnecessary assertions. Part III describes a glaring error in the issued search warrant, how that error was handled in search execution, the ultimate refusal of the trial court to suppress the resulting evidence, and what such decisions mean for search warrants generally. Although there is long-standing debate regarding how best to both deter police misconduct and permit accurate adjudication of wrongdoing, including regarding the wisdom of suppressing illegally obtained evidence, the Bradley investigation amply demonstrates that something more must be done to incentivize police if courts are going to apply generous notions of inevitable discovery. Part IV describes Kozinski’s computer search odyssey and places it in the larger context of the law governing the search of computers. Given the current state of forensics technology, it is understandable that courts have balked at substantially limiting police forensics examination. But spurred by the demands of civil electronic discovery, computer search algorithms are becoming increasingly sophisticated, and courts are wise to lay a framework that can accommodate future technologies.
Number of Pages in PDF File: 50
Keywords: fourth amendment, search, computer search, inevitable discovery, search warrant, warrant execution, Earl Bradley
JEL Classification: K14
Date posted: January 4, 2012 ; Last revised: May 7, 2013