Kansas Court of Appeals: Warrant to Look for Hidden Files Not Overly Broad

A week ago, the Court of Appeals of Kansas issued a decision, Graf v. State, No. 120,736, 2020 Kan. App. Unpub. LEXIS 686 (Kan. Ct. App. Oct. 9, 2020) , affirming the decision of a state district court in denying a motion for ineffective assistance of counsel for failure to file a motion to suppress evidence seized during a search of his person, and during the execution of search warrants, on the basis of the warrants being overly broad. During a search incident to the arrest of Graf, a police officer took an iPod and two memory cards from his pockets. The police then obtained a warrant to search these items based in part on affidavits filed by a detective with more than a thousand hours of training in computer forensic examination. Graf was charged with using a camera to covertly record women in the dressing room of a clothing store.


In his affidavit, the detective noted that criminal suspects often encrypt or rename files in order to prevent their discovery. In justifying the need for broad language used in the warrant, the detective testified that, "[I]nternet history tells me whether or not he is interested in this type of thing, including buying cameras and things like that. I can't think of a type of computer file that a video or picture couldn't be hidden as or renamed to be or a portion of that hard drive that a computer or video file or the evidence that we were looking for could reside on." Id. at *10 .


The Court concluded that, "Officers conducting searches of a computer cannot simply conduct a sweeping, comprehensive search of a computer's hard drive. However, as a practical matter because of individuals' ability to hide, mislabel, or manipulate files . . . there may be no practical substitute for actually looking in many (perhaps all) files and locations during a search of digital storage. Based on a review of the search warrants and supporting affidavits, as well as the transcript of the evidentiary hearing on Graf's K.S.A. 60-1507 motion, we find the warrants were not overbroad in light of the type of investigation that the police were conducting." Id. at *18 (citations omitted). Relevant to the Court's decision was the fact that a camera discovered in the dressing room of the store showed Graf installing it, and while this camera had a memory card, there was no way to view the data on it without using a computer. The detective also testified about the use of steganography to store files in hidden partitions of a computer.

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