A New Fourth Amendment Concern: ‘Don’t Touch That Mouse Pad!’
By David Stout | September 28, 2011 1:54 pm

The Founding Fathers who drew up the Fourth Amendment to the Constitution, protecting the right of people “to be secure in their persons, houses, papers, and effects” against unreasonable searches and seizures, lived in a world of horse carriages, wax-sealed letters and quill pens.

Since then, courts have been asked to decide when telephone wiretaps, global positioning systems, satellite surveillance and other marvels that Benjamin Franklin and Thomas Jefferson couldn’t have dreamed of do or do not constitute a Fourth Amendment violation. Now, from an otherwise unremarkable case, comes another question: Is taking a computer out of screen-saver mode a “search” under the Fourth Amendment?

Yes, ruled a Wisconsin magistrate judge, Nancy Joseph, in the case of Michael L. Musgrove of  West Allis, Wis., who is accused of threatening in a posting on Craigslist last January to bring a firearm to a shopping mall. If convicted, he could be sentenced to five years in prison and fined up to $250,000.

As recounted by Professor Orin Kerr of George Washington University Law School, the police received calls from citizens about threats to the mall and obtained information from Craigslist that led them to Musgrove’s home. Musgrove invited officers inside. “While the officers were present in the home, an officer saw a laptop computer that was either off or in screen-saver mode,” Kerr writes.  “The officer touched a key or moved the mouse pad, and the computer came out of screen-saver mode.”

And up popped some potentially incriminating information that prompted officers to arrest Musgrove.  He later moved to suppress that information, arguing that taking his computer out of screen-saver mode was a “search” that required some justification under the Fourth Amendment.

The magistrate agreed. “Whether there is a search here is a close call because the officer did not actively open any files,” she held, as Kerr recounts on The Volokh Conspiracy blog, run by Professor Eugene Volokh of the UCLA School of Law. “A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ’search’ for Fourth Amendment purposes,” she conceded.

“However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the court concludes that this was a search, however minimal, which required further authority, a warrant or consent….The Court therefore recommends that the defendant’s Facebook wall be suppressed.”

The magistrate’s reasoning on the screen-saver issue was upheld by Chief  U.S. Judge C.N. Clevert Jr. of the Eastern District of Wisconsin, who also ruled that the magistrate was correct in denying Musgrove’s motion to suppress other evidence seized in his home and refusing to dismiss the indictment against him.

So Musgrove’s legal troubles are far from over. But police officers may have to think twice about touching those mouse pads.


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