On Wednesday, the Sixth Circuit decided that if law enforcement officers can connect a suspect to a crime involving a computer, no matter how minor its role, they can search the suspect’s home. In the instant case, a suspect’s home was searched because the alleged crime involved computer-generated flyers.
In upholding this bizarre overreach, the court analogized computers to guns.
It is clear that the use of a gun in the commission of a crime is sufficient to establish a nexus between the suspected criminal’s gun and his residence. Computers are dissimilar to guns in many ways, including the nature of the crimes in which they are used and the relative ease with which guns can be transported and discarded. Computers are similar to guns, however, in that they are both personal possessions often kept in their owner’s residence and therefore subject to the presumption that a nexus exists between an object used in a crime and the suspect’s current residence. This is borne out by our cases involving the consumption of child pornography via computer.
But computers aren’t like guns. They’re ubiquitous, even necessary, and most uses are non-criminal. The cases the court cites to shore its reasoning only highlight the major difference between this decision and prior, related rulings: The court’s only previously upheld searches arising out of information specific to the device believed to be implicated in the crime.
Although we have never been asked to pass judgment on a magistrate’s finding of a nexus between the computer used to consume child pornography and the alleged consumer’s residence based on nothing more than the use of the computer, we have placed our imprimatur on a number of search warrants issued based on affidavits with scant evidence supporting a nexus beyond the use of a computer. See, e.g., United States v. Elbe, 774 F.3d 885, 890 (6th Cir. 2014) (finding that affidavit established nexus because the suspect’s residence had high-speed internet and the suspect had been observed using a laptop on his front porch); United States v. Lapsins, 570 F.3d 758, 766 (6th Cir. 2009) (finding that affidavit established nexus because the IP address used to distribute prohibited material was accessed by a residential modem located in the general vicinity of suspect’s residence and that suspect had participated in an online chat regarding prohibited material between the hours of 6:30 and 8:30 a.m., when suspect would be at home); United States v. Terry, 522 F.3d 645, 648 (6th Cir. 2008) (finding nexus because affidavit established that the suspect had a computer at his residence and had sent an email containing prohibited material at approximately 2:30 a.m.).
Here, law enforcement made no effort to so much as suggest that the suspect owned a computer, electronic storage device, or printer; instead, they assumed that if he did have one and had used it in a crime it would be in his home. Almost every home would be fair game if this pernicious reasoning were to spread.