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Pohland v. State (11/23/2018) ap-2624

Pohland v. State (11/23/2018) ap-2624

                                                                                                NOTICE
  

                 The text            of   this opinion can be corrected before the opinion is published in the                                                 

                Pacific Reporter                    .   Readers are encouraged to bring typographical or other formal                                                   

                errors to the attention of the Clerk of the Appellate Courts:    



                                                              303 K Street, Anchorage, Alaska  99501  

                                                                                  Fax:  (907) 264-0878  

                                                                    E-mail:  corrections@ akcourts.us  



                                   IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                          



ERIN  A.  POHLAND,  

                                                                                                                                                                              

                                                                                                                            Court of Appeals No. A-12443  

                                                                                                                                                                                               

                                                                 Appellant,                                             Trial Court No. 3AN-12-1066 CR  



                                                 v.  

                                                                                                                                           O  P  I  N  I  O  N  

                                                                                                                                                                               

STATE  OF  ALASKA,  



                                                                 Appellee.                                               No. 2624 - November 23, 2018  

                                                                                                                                                                                          



                                 Appeal   from   the   District   Court,   Third   Judicial                                                                    District,  

                                                                                                                                                             

                                 Anchorage, Jo-Ann Chung, Judge.  

                                                                                                



                                 Appearances:  Cynthia L. Strout, Anchorage, for the Appellant.  

                                                                                                                                                                                    

                                 Michal Stryszak, Assistant Attorney General, Office of Criminal  

                                                                                                                                                               

                                 Appeals,  Anchorage,  and Jahna Lindemuth,  Attorney General,  

                                                                                                                                                              

                                 Juneau, for the Appellee.  

                                                                                           



                                 Before:  Mannheimer, Chief Judge, and Allard and Wollenberg,  

                                                                                                                                                      

                                 Judges.  

                                                   



                                 Judge MANNHEIMER.  

                                                



                                 Erin A. Pohland, a former assistant attorney general, appeals her conviction                                                                             



for official misconduct,                                    AS 11.56.850(a).                              The State alleged that Pohland                                                   used her   



position as legal advisor to the Alaska Labor Relations Agency to benefit her personal                                                                                                        



friend, Skye McRoberts.                                        


----------------------- Page 2-----------------------

                                             Much of the evidence against Pohland was based on information obtained                                                                                                                                                     



during a search of her personal computer.                                                                                                         This computer was seized when the state                                                                                        



troopers executed a search warrant for Skye McRoberts's house - where Pohland was                                                                                                                                                                                                      



renting an apartment.                                                    The troopers were looking for evidence of                                                                                                       McRoberts's  potential  



business and financial crimes, but they seized Pohland's computer under the theory that                                                                                                                                                                                                



McRoberts might have hidden evidence of her crimes in any                                                                                                                                                          computer or electronic                          



storage device located within the house - even Pohland's personal laptop, which was                                                                                                                                                                                                   



found in Pohland's apartment.                                                                            



                                             Pohland contends that the search of her computer violated her rights under                                                                                                                                                          



the Fourth Amendment and under the corresponding provision of the Alaska Constitution                                                                                                                                                                       



(Article I, Section 14).                                                        We agree with Pohland that the search of her computer was                                                                                                                                             



unlawful.   Even when the police have a warrant to search a house, a personal computer                                                                                                                                                                             



must be treated differently from other objects or containers in the house.                                                                                                                                                                         As the United             

                                                                                                                                                                                          1  a police search of this kind of  

 States Supreme Court explained in                                                                                   Riley v. California                                                ,                                                                                                    



personal digital device "[will] typically expose to the government far more than the most  

                                                                                                                                                                                                                                                                                   



exhaustive search of a [person's] house", because the device "not only contains in digital  

                                                                                                                                                                                                                                                                                



form many sensitive records previously found in the home", but also "a broad array of  

                                                                                                                                                                                                                                                                                             



                                                                                                                                                                                               2  

private information never found in a home in any form".  

                                                                                                                                                                                                    



                                             As we explain in this opinion, the troopers did not have probable cause to  

                                                                                                                                                                                                                                                                                             



believe that Pohland's personal laptop computer contained evidence of her landlord's  

                                                                                                                                                                                                                                                                



financial and business crimes.  Moreover, rather than confiningtheir search to documents  

                                                                                                                                                                                                                                                               



and spreadsheets (i.e.,  computer files that were more likely to contain  evidence  of  

                                                                                                                                                                                                                                                                                           



financial and  business  crimes),  the  troopers  obtained  much  of  the  evidence  against  

                                                                                                                                                                                                                                                                           



            1          573 U.S. __, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).
                                                                                                                           



           2  

                                                                                                                                                         

                      Riley , 573 U.S. at __, 134 S.Ct. at 2491.
  



                                                                                                                                           - 2 -                                                                                                                                      2624
  


----------------------- Page 3-----------------------

Pohland by combing through thousands of Pohland's personal text messages.                                                                                                                                                                                                                                                      (Pohland  



was using her laptop computer as a backup device for the data stored on her smart                                                                                                                                                                                                                                                               



phone.)    



                                                        For these reasons, we reverse Pohland's conviction.                                                                                                                                                                        



                             Underlying facts   



                                                        Pohland and Skye McRoberts were close friends, and Pohland lived in an                                                                                                                                                                                                                                



apartment (   i.e., a suite of rooms) within McRoberts's house.                                                                                                                                                                                                 



                                                        Pohland was also an assistant attorney general who advised the Alaska                                                                                                                                                                                                              



Labor Relations Agency - the agency within the executive branch that dealt with labor                                                                                                                                                                                                                                                              



union matters.                                                 



                                                        Pohland's friend McRoberts worked as a union organizer for the Alaska                                                                                                                                                                                                               



 State Employees Association.                                                                                                   The State Employees Association was engaged in                                                                                                                                                                              an  



effort to unionize the employees of the University of Alaska.                                                                                                                                                                                                       In connection with this                                                             



effort, McRoberts submitted employee "interest" cards to the Labor Relations Agency                                                                                                                                                                                                                                                     



-  cards purporting to express the interest of various University employees in becoming                                                                                                                                                                                                                                         



members of the union.                                                                           (Under Alaska law, at least 30 percent of a proposed bargaining                                                                                                                                                               

                                                                                                                                                                                                              3)  

unit must express interest in becoming unionized.                                                                                                                                                                      



                                                        The Labor Relations Agency came to suspect that a number of these interest  

                                                                                                                                                                                                                                                                                                                                           



cards might have been forged, so the Agency contacted Pohland for advice.  Based on  

                                                                                                                                                                                                                                                                                                                                                             



the advice that Pohland gave to the Labor Relations Agency, Pohland was charged with  

                                                                                                                                                                                                                                                                                                                                                      



official misconduct.  

                                                                                     



              3             See  08 A                           AC  97.060(c).   



                                                                                                                                                                            - 3 -                                                                                                                                                                       2624
  


----------------------- Page 4-----------------------

                                                                                                                               

                    Specifically, the State alleged that Pohland failed to tell the Agency that she  



                                                                                                                

was close friends with McRoberts, that she lived in an apartment within McRoberts's  



                                                                                                                              

home, that she had regularly discussed the unionization effort with McRoberts, and that  



                                                                                                                          

she had assisted McRoberts in this effort.  The State further alleged that Pohland's advice  



                                                                                                                              

to the Labor Relations Agency was designed to shield her friend McRoberts from any  



                                                                                                                                 

official investigation into the possibility that McRoberts had forged, or had colluded in  



                                                         

forging, the employee interest cards.  



                                                                                                                     

          The seizure and search of Pohland's computer, and the litigation of the  

                                                            

          suppression motion in the trial court  



                                                                                                                          

                    In  March 2011, the Alaska State Troopers obtained a warrant to search  



                                                                                                                              

McRoberts's house for evidence that she and her husband, Donavahn McRoberts, had  



                                                                                                                        

committed forgery and falsification of business records relating to the forged interest  



                                                                                                                           

cards.  More specifically, the search warrant authorized the troopers to search the house  



                                                                                                                              

for various kinds of documents "related to the business and finances" of McRoberts and  



                                                                                                                      

her husband, as well as documents related to the solicitation of potential union members  



                                                 

from the University of Alaska.  



                                                                                                                       

                    When the troopers applied for this search warrant, they knew that Pohland  



                                                                                                                              

was good friends with McRoberts,  they  knew that the Labor Relations Agency had  



                                                                                                                            

sought advice from Pohland regardingthe forged interest cards, and they knew that there  



                                                                                                                     

were reasons to question the competence of Pohland's advice to  the Labor Relations  



               

Agency.  



                                                                                                                                 

                    In particular, the search warrant affidavit recited that Pohland's advice to  



                                                                                                                              

the Labor Relations Agency "did not follow the guidelines for forged Interest Cards laid  



                                                                                                                       

out in a National Labor Relations Manual".  The search warrant affidavit also asserted  



                                                              - 4 -                                                          2624
  


----------------------- Page 5-----------------------

                                                                                                                               

that Pohland "failed to advise [the Agency] to contact law enforcement to investigate the  



                                                                                                                            

matter", and that Pohland failed to tell the Labor Relations Agency that she was good  



                                                                                                 

friends with McRoberts and that McRoberts was her landlord.  



                                                                                                                             

                    However, both the troopers and the prosecutor assigned to the case later  



                                                                                                                      

conceded that, when the troopers applied for the warrant, they did not have probable  



                                                                                                         

cause to believe that Pohland was complicit in McRoberts's crimes.  



                                                                                                                    

                    The  search  warrant  issued  by  the  district  court  contained  a  provision  



                                                                                                                          

authorizing the troopers to seize and search any computer or electronic storage media  



                                                                                                                             

"capable of concealing documents related to the business and finances associated with  



                                                                      

Donavahn McRoberts or Skye McRoberts."  



                                                                                                                       

                    During the troopers' ensuing search of McRoberts's house, the troopers  



                                                                                                                               

identified Pohland's separate apartment within the house.  This area of the house did not  



                                                                                                                                  

have separate egress to the street, but it was a suite of rooms comprising a bedroom, a  



                                                                                                              

separate kitchen, a separate bathroom, and a clothes washer and dryer.  



                                                                                                                                  

                    While the troopers were searching Pohland's apartment,  they  seized  a  



                                                                                                                               

laptop computer.   At the time, the troopers  conducting the search presumed that the  



                                                                                                                           

laptop  belonged  to  Pohland.                  A subsequent  examination  of  the  laptop's  hard  drive  



                                                                                                                                

confirmed this assumption.   The laptop contained numerous documents belonging to  



                                                                                                                         

Pohland, as well as thousands of text messages between Pohland and various  people  



                                                                                      

(backup copies of texts from Pohland's mobile phone).  



                                                                                                                              

                    Many  of  these  text  messages  were  exchanged  between  Pohland  and  



                                                                                                                                

McRoberts,  and  some  of  these  text  messages  appeared  to  discuss  the  campaign  to  



                                                                                                                             

unionize the university workers.   These text messages became part of the State's case  



                                                                                                                              

against Pohland when she was later charged with official misconduct for the advice that  



                                                               

she gave to the Labor Relations Agency.  



                                                              - 5 -                                                          2624
  


----------------------- Page 6-----------------------

                                                                                                                        

                    After Pohland was charged, her attorney asked the district court to suppress  



                                                                                             

the evidence obtained from the search of Pohland's laptop.  



                                                                                                                             

                    Pohland's attorney argued that Pohland's apartment was a separate living  



                                                                                                                    

space, and that the warrant authorizing a search of McRoberts's house did not encompass  



                                                                                                                                

Pohland's apartment.  In the alternative, the defense attorney argued that the troopers did  



                                                                                                                   

not have probable cause to believe that Pohland's personal laptop contained information  



                                                                                                                       

relevant to the crimes that the troopers were investigating  (i.e.,  the crimes allegedly  



                                                                      

committed by McRoberts and her husband).  



                                                                                                                   

                    Following  an  evidentiary  hearing,  the  district  court  denied  Pohland's  



                                 

suppression motion.  



                                                                                                                        

                    In its ruling, the district court acknowledged that, "generally, if a structure  



                                                                                                                               

is divided into more than one occupancy unit, probable cause must exist for each unit  



                                                                                                                              

[which is] to be searched."  The district court acknowledged that Pohland "had her own  



                                                                                                                                      

living space" within McRoberts's house, and that Pohland paid rent for this apartment.  



                                                                                                                                 

The court also found that the entrance door into Pohland's apartment was lockable -  



                                                                                                                                      

even though that door was not locked when the troopers executed the search warrant.  



                                                                                                                           

                    However,  the district court concluded that Pohland's  apartment within  



                                                                                                                                

McRoberts's house was not so sequestered as to constitute a separate occupancy unit for  



                                                                                                                        

Fourth  Amendment  purposes.                       The  district  court  reached  this  conclusion  because  



                                                                                                                        

Pohland's  apartment  did  not  have  its  own  separate  egress  to  the  street,  because  



                                                                                                                          

McRoberts  and  Pohland  were  close  friends  (i.e.,  their  relationship  was  not  simply  



                                                                                                                             

landlord and tenant), and because the court found that McRoberts continued to have  



                                                                                                                                 

"general access" to Pohland's apartment "as the landlord and owner of the house".  



                                                                                                                       

                    The  district  court  further  concluded  that,  even  though  the  troopers  



                                                                                                                                  

presumed from the outset that the laptop seized from Pohland's apartment belonged to  



                                                                                                                               

Pohland, and not McRoberts, the troopers nevertheless had probable cause to believe that  



                                                               - 6 -                                                          2624
  


----------------------- Page 7-----------------------

                                                                                                                         

Pohland's laptop contained evidence of McRoberts's crimes.  The district court pointed  



                                                                                                                              

out that the entry door to Pohland's apartment was inside McRoberts's house, and that  



                                                                                                                    

"there  was  no  evidence  that  ...  McRoberts  was  blocked  from  access  to  Pohland's  



                                                                                                                              

apartment."  The court also again pointed out that Pohland and McRoberts were not  



                                                                                             

simply tenant and landlord; instead, they were close friends.  



                                                                                                                     

                    The  district  court  acknowledged  (based  on  the  investigating  trooper's  



                                                                                                                      

testimony, and based on the prosecutor's express concession) that when the troopers  



                                                                                                                       

applied for the search warrant, they did not have probable cause to believe that Pohland  



                                                                                                                               

herself had committed any crime.   Nevertheless,  the  district court concluded that the  



                                                                                                                      

troopers had probable cause to believe that McRoberts might have concealed evidence  



                                                                                                                               

of her own crimes within Pohland's living area - including hiding this evidence on the  



                                                                 

hard drive of Pohland's laptop computer.  



                                                                                                                                 

                    The court therefore ruled that the search warrant authorized the troopers to  



                                                       

seize and search Pohland's laptop.  



                                                                                                             

          A preliminary note on the issue of whether the troopers could lawfully  

                                                                                                               

          enter Pohland's apartment to search for evidence of McRoberts's crimes  



                                                                                                                              

                    As we noted in the precedingsection of this opinion, the State concedes that  



                                                                                                                                 

when the troopers applied for the search warrant, they did not have probable cause to  



                                                                                                                             

believe  that  Pohland  was  complicit  in  McRoberts's  crimes,  or  that  Pohland  was  



                                                                                                                       

knowingly concealingevidence of McRoberts's crimes.  Pohland argues that the troopers  



                                                                                                                         

therefore failed to establish probable cause to search her personal apartment  within  



                                 

McRoberts's house.  



                                                                                                                                

                    As explained in Professor LaFave's treatise on search and seizure law, "a  



                                                                                                                               

search warrant for an apartment house or hotel or other multiple-occupancy building will  



                                                              - 7 -                                                          2624
  


----------------------- Page 8-----------------------

                                                                                                                                      

usually be held invalid if it fails  to  describe  the particular subunit to be searched".  



                                                                                                                                

Wayne R. LaFave, Search and Seizure:  A Treatise on the Fourth Amendment (5th ed.  



                                                                                                                        

2012),  4.5(b), Vol. 2, pp. 731-32.  To prevent the police from searching the subunits  



                                                                                                      

indiscriminately  without  probable  cause,  a  search  warrant  for  a  multiple-occupancy  



                                                                                                                                  

building must normally be supported by a showing of probable cause as to each unit to  



                                                                                                                             

be searched.  See the cases cited in LaFave,  4.5(b), n. 64, Vol. 2, pp. 732-33.  



                                                                                                                            

                    This multiple-occupancy rule does not apply in situations where a single  



                                                                                                                            

residence  is  occupied  by  several people  or  families  who  share  the  common  living  



                                                                                                                                     

quarters, even though they each have a separate bedroom.  Id. ,  4.5(b), Vol. 2, p. 741.  



                                                                                                                                   

But in Pohland's case, as we have explained, her apartment was a suite that contained a  



                                                                                                               

separate kitchen, a separate bathroom, and clothes washing appliances.  



                                                                                                                              

                    Indeed,  the  search  warrant  application  implicitly  acknowledged  that  



                                                                                                                     

Pohland's apartment was a separate subunit within McRoberts's house.  The application  



                                                                                                                           

explained that McRoberts was Pohland's landlord, and the application expressly sought  



                                                                                                                                  

permission to search "any part of the residence ... that may be occupied or considered to  



                                                       

be in the control of Ms. Pohland."  



                                                                                                                               

                    The proposed justification for searching Pohland's  apartment was that  



                                                                                                                           

McRoberts was Pohland's landlord, and that Pohland and McRoberts were close friends  



                                                                                                                               

- thus suggesting that McRoberts might have gained access to Pohland's apartment and  



                                                                 

hidden evidence of her own crimes there.  



                                                                                                                     

                    In  its  decision,  the  district  court  ruled  that  the  search  of  Pohland's  



                                                                                                                         

apartment was lawful because the evidence presented at the later suppression hearing  



                                                                                                                                      

showed that McRoberts may have had physical access to Pohland's portion of the house.  



                                                                                                                                 

In particular,  the district court relied on evidence that, even though the main door to  



                                                                                                                                

Pohland's apartment could be locked, it was not locked when the troopers entered the  



                                                               - 8 -                                                          2624
  


----------------------- Page 9-----------------------

                                                                                                                           

house to execute the search warrant.  From this, the district court concluded that "there  



                                                                                                                                      

was no evidence that Skye McRoberts was blocked from access to Pohland's apartment."  



                                                                                                                  

                    But it was not Pohland's burden to show that McRoberts was affirmatively  



                                                                                                                               

blocked from access to her apartment. Rather, it was the State's burden to prove that  



                                                                                                                               

McRoberts did, in fact, have access to Pohland's apartment. Moreover, this showinghad  



                                                                                                                  

to be made in the search warrant application itself, not from after-acquired information.  



                                                                                                                         

And the critical question was not whether McRoberts was capable of physically entering  



                                                                                                                          

Pohland's apartment.  The issue here was whether the search warrant application offered  



                                                                                                                           

reason to believe that McRoberts had control over Pohland's apartment to such a degree  



                                                                                                                     

that she would use that apartment to hide evidence of her own wrongdoing.  



                                                                                                                                

                    Despite our questions about  the district court's ruling on this issue,  we  



                                                                                                                                  

conclude that we need not resolve these questions.  As we explain in the next section of  



                                                                                                                       

this opinion, even if we assume that the search warrant application established probable  



                                                                                                                     

cause for a search of Pohland's separate apartment, the troopers' search of Pohland's  



                                                            

laptop computer was unconstitutional.  



                                                                                                                    

           Why  we  conclude  that  the  search  of  Pohland's  laptop  computer  was  

          unconstitutional  



                                                                                                                           

                     In its brief to this Court, the State argues that the search of Pohland's laptop  



                                                                                                                       

computer was justified under the principle that a search warrant for a residence generally  



                                                                                                                                 

authorizes the police to search personal effects found within the residence (so long as  



                                                                                                                               

those containers are capable of concealing the evidence described in the warrant).  See  



                                                                      

generally LaFave,  4.10(b), Vol. 2, p. 946.  



                                                               - 9 -                                                          2624
  


----------------------- Page 10-----------------------

                                       The State's argument rests on the premise that Pohland's laptop computer                                                                                                               



should    be   viewed   as   just   another   personal   effect   or   closed   container   located   in  



McRoberts's house.                                          For the reasons we are about to explain, we reject this premise.                                                                                                                         



                                       Portable computingdevices -laptop                                                                        computers, tablets, and smart phones                                                 



-  are distinguishing features of modern life.                                                                                    These devices have changed the way we                                                                         



communicate, and they have changed the way we create and store documents, personal                                                                                                                                               



communications and correspondence, photographs, and business records.                                                                                                                                                



                                       The contents of a person's laptop, tablet, or smart phone will often offer a                                                                                                                                   



compendium of that person's family and social life, their private and business interests,                                                                                                                                      



their recreational activities, and their intimate thoughts.                                                                                                       And this digital technology is                                                    



now practically ubiquitous.                                                    According to the Pew Research Center, over 90 percent of                                                                                                            



Americans own a cell phone,                                                              and   the   rate of computer ownership among adults is                                                                                                     



                                                         4  

roughly 75 percent.                                          



                                       The prevalence of these digital devices has caused courts to re-think the  

                                                                                                                                                                                                                                               



contours of the Fourth Amendment's  prohibition against unreasonable searches and  

                                                                                                                                                                                                                                             



seizures. As the United States Supreme Court noted in Riley v. California, 573 U.S. __,  

                                                                                                                                                                                                                                                



 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), a police search of this kind of digital device  

                                                                                                                                                                                                                                      



"[will] typically expose to the government far more than the most exhaustive search of  

                                                                                                                                                                                                                                                   



a [person's] house", because the device "not only contains in digital form many sensitive  

                                                                                                                                                                                                                                



records previously found in the home", but also "a broad array of private information  

                                                                                                                                                                                                                       



never found in a home in any form".  Riley, 573 U.S. at __, 134 S.Ct. at 2491.  

                                                                                                                                                                                                                                      



                                       Although Riley itself dealt with the search of a cell phone, other courts have  

                                                                                                                                                                                                                                           



recognized that the rationale of Riley applies equally to computers and equivalent devices  

                                                                                                                                                                                                                                    



          4        See  "Technology Device Ownership: 2015" (Oct. 29, 2015), available at:
                                                                                                                                



          http://www.pewinternet.org/2015/10/29/technology-device-ownership-2015 .
  



                                                                                                                     -  10 -                                                                                                                 2624
  


----------------------- Page 11-----------------------

                                                                                                                              

for storing electronic data.  See United States v. Turner, 839 F.3d 429, 434 (5th Cir.  



                                                                                                                              

2016);  United States v. Horton, 863 F.3d 1041, 1047 (8th Cir. 2017), cert. denied  138  



                                                          

S.Ct. 1440, 200 L.Ed.2d 721 (2018).  



                                                                                                                                

                    As illustrated by the lengthy discussion that Professor LaFave devotes to  



                                                                                                                              

this  issue  -  see  LaFave  (5th  ed.  2012),   4.10(d),  Vol.  2,  pp.  962-971,  and  the  



                                                                                                                         

accompanying pocket part (2017), pp. 113-15 - courts have grappled with two related  



                                                                                                                             

questions:  First, what kind of probable cause must a court demand when the police seek  



                                                                                                                            

authorization to search a personal computer or other digital device?  And second, what  



                                                                                                                           

level of particularity must a court demand when the court issues such a warrant?  



                                                                                                                                

                    Turning to the question of what kind of probable cause was needed to  



                                                                                                                          

support the seizure and search of Pohland's laptop computer, we note that the search  



                                                                                                                         

warrant in this case was issued to allow the troopers to search for evidence of crimes  



                                                                                                                       

committed by McRoberts - the suspected crimes of forgery and falsification of business  



                                                                                                                       

records. The troopers did not assert that Pohland was complicit in McRoberts's forgeries  



                                                                                                                     

and falsifications of business records.   Rather, the troopers' justification for searching  



                                                                                                                              

Pohland's apartment at all was that McRoberts might have concealed evidence of her  



                                                                        

own wrongdoing inside Pohland's living space.  



                                                                                                                                

                    The warrant authorized the troopers to search for documents "related to the  



                                                                                                                       

business and finances" of Skye McRoberts and her husband Donavahn.  And because  



                                                                                                                       

business  and  financial  documents  nowadays  often  take  digital  form,  the  warrant  



                                                                                                                  

contained a provision that authorized the troopers to seize and search all the "computers  



                                                                                                       

and electronic storage media" within the house for such evidence.  



                                                                                                                             

                    (Technically, the warrant contained a clause that limited this search to only  



                                                                                                                                 

the computers and storage media that were "capable of concealing documents related to  



                                                                                                                                     

the business and finances associated with Donavahn McRoberts or Skye McRoberts".  



                                                                                                                           

But as a practical matter, this was an authorization to search every computer and digital  



                                                             -  11 -                                                         2624
  


----------------------- Page 12-----------------------

                                                                                                                    

storage device in the house - because all such devices are "capable" of concealing  



                                                      

business and financial documents.)  



                                                                                                                     

                    Putting all of this together, the troopers' rationale for searching Pohland's  



                                                                                                                                

laptop computer was not because Pohland was suspected of being an accomplice  to  



                                                                                                                              

McRoberts's crimes, but rather because (1) McRoberts was suspected of business and  



                                                                                                                            

financial wrongdoing, and (2) evidence pertaining to such crimes often takes the form  



                                                                                                                                

of  digital documents,  spreadsheets,  etc.,  and (3) McRoberts had physical access  to  



                                                                                                                                

Pohland's living space, and thus (4) McRoberts might have hidden digital evidence of  



                                                                                      

her own crimes on the hard drive of Pohland's laptop.  



                                                                                                                              

                    This kind of speculation did not constitute probable cause to believe that  



                                                                                                                              

the evidence the troopers were seeking - i.e., documents pertaining to the business and  



                                                                                                                             

finances of McRoberts and her husband - would be found on Pohland's laptop.  



                                                                                                                                 

                    In their search warrant application, the troopers offered no explanation of  



                                                                                                                          

why they thought that McRoberts could gain access to the hard drive of Pohland's laptop  



                                                                                                                              

computer, even if McRoberts had physical access to Pohland's living space.   The fact  



                                                                                                                

that Pohland's laptop was physically located in a rented apartment within McRoberts's  



                                                                                                                              

house, and the fact that McRoberts was Pohland's landlord and close friend, does not  



                                                                                                                                 

give rise to the inference that McRoberts had access to the contents of the hard drive in  



                                                                                                                 

Pohland's laptop.  Laptop computers are normally equipped with security mechanisms  



                                                                                                                                

that allow an owner to restrict access to the contents of the laptop by a password or by  



                                                                                      

a similar identification mechanism, such as a fingerprint.  



                                                                                                                   

                    Nor did the troopers  offer any explanation of why,  even if McRoberts  



                                                                                                                               

somehow gained access to the laptop's hard drive, McRoberts would choose to hide her  



                                                                                                                          

business and financial documents on a laptop computer owned by Pohland - a readily  



                                                                                                                  

portable device that was generally outside McRoberts's immediate control.  



                                                             -  12 -                                                         2624
  


----------------------- Page 13-----------------------

                                                                                                                               

                    The State cites the Ninth Circuit's decision in United States v. Adjani, 452  



                                                                                                                          

F.3d  1140  (9th  Cir.  2006),  for  the  proposition  that  a  search  warrant  can  validly  



                                                                                                                           

encompass computers and digital storage devices belonging to a third person who shares  



                                                                                                                             

a house with the target of the investigation.  But the facts of Adjani  differ materially from  



                                             

the facts of Pohland's case.  



                                                                                                                           

                    In  Adjani ,  the  government  was  investigating  a  computer-based  crime  



                                                                                                                

(extortion by threatening disclosure of a confidential database), and the government's  



                                                                                                                                

search warrant affidavit expressly asserted that Adjani's girlfriend was involved in the  



                                                                                                                               

extortion scheme, either as a witting accomplice or at least as an innocent agent who had  



                                                                                                                                  

been duped into performing acts that furthered the scheme.   See Adjani , 452 F.3d at  



                                                                                                                              

1146-47 & n.4.   The Ninth Circuit concluded that, in these circumstances, there was  



                                                                                                                                 

probable  cause to believe that evidence of Adjani's computer-based crime could be  



                                                                 

found on his girlfriend's computer.  Ibid.  



                                                                                                                            

                    In contrast, the search warrant application in Pohland's case did not assert  



                                                                                                                        

that McRoberts had committed a computer-based crime, nor did it assert that Pohland  



                                                                                                                      

was actively participating in McRoberts's criminal scheme.  And as we have explained,  



                                                                                                                           

the  mere  fact  that  Pohland's  laptop  was  physically  located  in  an  apartment  within  



                                                                                                                                

McRoberts's house did not give rise to the inference that McRoberts could access the  



                                                                                                                   

contents of the laptop's hard drive, nor did it give rise to the inference that McRoberts  



                                                                                                                                

was likely to hide  evidence of her own crimes on a computer that was controlled by  



                 

Pohland.  



                                                                                                                        

                    Accordingly, we hold that the search warrant application did not establish  



                                                                                                 

probable cause to seize and search Pohland's laptop computer.  



                                                                                                                                

                    In addition, we hold that the search warrant in this case failed to satisfy the  



                                                                                                                          

constitutional requirement of particularity.  That is, the warrant failed to limit or restrict  



                                                                                                                        

the troopers'  search of Pohland's laptop so as to reasonably ensure that the troopers  



                                                              -  13 -                                                         2624
  


----------------------- Page 14-----------------------

confined their search of the hard drive                                                                                                           to those files and folders that were likely to                                                                                                             



contain the evidence named in the warrant.                                                                                                                  



                                                Because a modern personal computing device stores and indexes a huge                                                                                                                                                                            



array of information about the private affairs and communications of its owner, all in one                                                                                                                                                                                                               



place, an authorization to search any and all computing devices and electronic storage                                                                                                                                                                                                     



devices can easily become the sort of general warrant that the Fourth Amendment was                                                                                                                                                                                                                    



designed to guard against. For this reason, courts have come to recognize that the Fourth                                                                                                                                                                                                    



Amendment's    requirement    of    "particularity"    -    i.e.,    the    Fourth    Amendment's  



requirement   that   a   warrant   "particularly   describ[e]   the   place   to   be   searched"   -   is  



especially important when the police apply for a search warrant that will potentially                                                                                                                                                                                        



                                                                                                                                                                                                                                               5  

authorize the search of all the digital devices on a named premises.                                                                                                                                                                                 



                                                This is a situation where "the greatest care in [drafting a search warrant's]  

                                                                                                                                                                                                                                                                                



description is required",  since the likelihood "of [the] seizure of innocent  articles by  

                                                                                                                                                                                                                                                                                                           

mistake is the most substantial." 6   Accordingly, several courts have condemned warrants  

                                                                                                                                                                                                                                                                                       



that purported to confer "a blanket authorization to search for and seize all electronic  

                                                                                                                                                                                                                                                                                  



            5            United States                                 v.Otero                     ,563             F.3d 1127, 1131-32 (10th                                                                Cir. 2009),citing                                          United States   



v.  Riccardi , 405 F.3d 852, 863 (10th Cir. 2005), and                                                                                                                           United States v. Carey                                                        , 172 F.3d 1268,                  

 1272 (10th Cir. 1999).                                                         



            6  

                                                                                                                                       

                        LaFave ,  4.6(a), Vol. 2, p. 774.  



                                                                                                                                                 -  14 -                                                                                                                                               2624
  


----------------------- Page 15-----------------------

                          7  

devices".      Courts   have   insisted   that   such   warrants   provide   a   reasonably   specific  



                                                                                                                                                                                                            8  

description of the material that the police can search for within the device.                                                                                                                                  



                                     In  Pohland's  case,  as  we  have  already  explained,  the  search  warrant  

                                                                                                                                                                                                                        



authorized the troopers to seize and search all the computers and digital storage devices  

                                                                                                                                                                                                                          



in McRoberts's house for digital business and financial records - more specifically,  

                                                                                                                                                                                                             



records related to the business and finances of McRoberts and her husband, to the extent  

                                                                                                                                                                                                                              



         7         United States v. Griffith                                        , 867 F.3d 1265, 1276 (D.C. Cir. 2017) ("[It is unlawful] to                                                                                         



confer a blanket authorization to search for and seize all                                                                                              electronic devices.                                   The warrant   

must be tailored to the justifications for entering the home.                                                                                                In this case, the warrant should                                

have limited the scope of permissible seizure to devices owned by Griffith, or devices linked                                                                                                                                  

to the shooting.");                              Commonwealth v. Dorelas                                                 , 43 N.E.3d 306, 312 (Mass. 2016) (Because                                                   

digital devices contain a wealth of private                                                                     information, it is not consistent with the Fourth                                                           

Amendment "to simply permit a search to extend anywhere the [target data] possibly could                                                                                                                                       

be found".                   Rather, "given the properties that render [a computing device] distinct from the                                                                                                                         

closed containers regularly seen in the physical world, a search of its many files must be done                                                                                                                                   

with special care", and a warrant to conduct such a search must "satisfy a more narrow and                                                                                                                                           

demanding standard.").                                       



         8  

                                                                                                                                                                                                                                     

                  See United States v. Russian, 848 F.3d 1239, 1245-46 (10th Cir. 2017) (holding that  

                                                                                                                                                                                                                     

a search warrant for a smart phone was insufficient because it failed to specify the particular  

                                                                                                                                                                                                                            

material  being  sought);  State  v.  Henderson,  854  N.W.2d  616,  632-34  (Neb.  2014)  

                                                                                                                                                                                                                                      

(invalidating a warrant for the search of a cell phone because the warrant failed to limit the  

                                                                                                                                                                                                                             

search to the content that was related to the probable cause); State v. Castagnola, 46 N.E.3d  

                                                                                                                                                                                                                                  

638, 657-58 (Ohio 2015) (holding that a search warrant application must be clear as to what  

                                                                                                                                                                                                                                      

the police are seeking on a computing device, and striking down a warrant that permitted the  

                                                                                                                                                                                                                                     

police  to  examine  every record and document  on the  defendant's  computer  to  find any  

                                                                                                                                                                                                                                 

evidence of the defendant's alleged crimes); Buckham v. State , 185 A.3d 1, 18-19 (Del.  

                                                                                                                                                                                                                                    

2018) (striking down a warrant that authorized the police to search "any and all store[d] data  

                                                                                                                                                                                                                                           

contained within the internal  memory" of the defendant's smart phone for evidence of a  

                                                                                                                                                                                                                                   

shooting: "warrants issued to search electronic devices call for particular sensitivity" in light  

                                                                                                                                                                                                                                 

of the "enormous potential for privacy violations" posed by unconstrained searches of these  

                         

devices).  



                                                                                                                -  15 -                                                                                                            2624
  


----------------------- Page 16-----------------------

                                                                                                                           

that these business and financialrecords were evidence of McRoberts's suspected crimes  



                                                                         

(forgery and falsification of business records).  



                                                                                                                        

                    The warrant contained no limitation on the kind of search that the troopers  



                                                                                                                                      

could perform on these computers and digital storage devices  once they seized them.  



                                                                                                                 

Instead, the warrant simply authorized the troopers to conduct a "forensic examination"  



                                      

of these digital devices.  



                                                                                                                               

                    And indeed, when the troopers searched Pohland's laptop, they did  not  



                                                                                                                            

restrict  their  search  to  "documents  related  to  the  business  and  finances"  of  Skye  



                                                                                                             

McRoberts  and  her  husband.                       Instead,  the  troopers  conducted  a  comprehensive  



                                                                                                                       

examination of the contents of Pohland's laptop.  Some of the most important evidence  



                                                                                                                             

against Pohland was discovered when the troopers found a backup of text messages from  



                                                                                                                          

Pohland's smart phone.  The troopers proceeded to examine thousands of these private  



                                                                                                                              

text messages, looking for any communication between Pohland and McRoberts.  



                                                                                                                       

                    Because the warrant failed to limit the scope of the troopers' "forensic  



                                                                                                                        

examination" of Pohland's laptop, the search warrant effectively authorized the troopers  



                                                                                                                              

to engage in a wide-ranging investigation of Pohland's private affairs.  Because of this,  



                                                                                                                                

the troopers' search of Pohland's laptop exceeded the boundaries of any search that the  



                                                                                                                           

court might reasonably have authorized, given the information provided in the search  



                                 

warrant application.  



                                                                                                                           

                    For  these  reasons,  we  conclude  that  the  search  of  Pohland's  laptop  



                                                                                                                                  

computer violated the Fourth Amendment to the United States Constitution and Article I,  



                                                                                                                             

Section 14 of the Alaska Constitution. The evidence against Pohland obtained as a result  



                                                       

of that search must be suppressed.  



                                                              -  16 -                                                         2624
  


----------------------- Page 17-----------------------

Conclusion  



                       The judgement of the district court is REVERSED.                                                                                  



                                                                                                                     -  17 -                                                                                                                                         2624
  

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