Your point is well taken, but the document you sighted also showed a case where the police, under a search warrant for a specific item, found child pornography on the suspect’s computer. The detective spent the next 5 hours chronicling the depth of the pornography. The court held that only the first email was admissible and granted the motion to suppress on the remainder.
Until there is sufficient case law that settles the single vs multiple container issue, we have different Circuit court definitions of what can be viewed under plain view and what cannot.
The bottom line is, I still believe the US Attorney’s office is trying to get it’s ducks in a row before going to a Judge and asking for a search warrant. Since the computer is physically controlled by the police, there is no hurry to get the warrant and they area trying to get it right.
One more interesting note...someone pointed out the emails were work product of either Huma or Hillary acting in their official capacities in the State Department. Since that email is technically “government property” is this just an exercise that could be resolved easily. What say you?
The problem is not with sufficiency, there is plenty of that. The problem is that the Supreme Court needs to resolve differing interpretations in lower courts. However, I disagree this is a plain view problem. The problem really is in defining the extent of a warrant's scope when a computer or mobile device is involved.
In the pornography case you cite, their is no plain view issue: the warrant describes a search for pornography on a computer, and the court held that the scope of the warrant did not extend to other areas on the computer searched for the same evidence. It's more like: you get a warrant to look for child pornography films, and wind up finding some on a usb drive in a coffee can. ["Elephant in a matchbox" restriction.]
I still believe the US Attorney’s office is trying to get it’s ducks in a row.
I'm not sure what the USA office is doing. Personally, I think they're just stalling. But we don't disagree that caution is proper and getting a new warrant is the best thing.
Since that email is technically “government property” is this just an exercise that could be resolved easily.
I don't think so. I've read other FReepers making this claim on other threads. But it isn't the content necessarily that creates the issue. Remember the Exclusionary Rule is a protection against violating a restriction on searches and seizures which are unreasonable.
Occasionally, the seizure of property is itself an issue, but that's pretty rare (outside of forfeiture cases.) In the instant case, I don't think anyone would say that taking possession of government property or work product is unreasonable. But even though it's US gov't property, the search for it can still be deemed unreasonable, which would make its discovery tainted.
Take the computer out of it, and ask the same question: a veteran is believed to have stolen some computers before discharge, which he has under his bed. The computers are clearly still DoD property. Can the police break down his door without a warrant? No.
By the way: a very enjoyable discussion. Thank you.