Vaidik, J.
The police obtained a search warrant for a property associated with Robert J. Plato, Jr., that authorized them to search for and seize “paperwork relating to title work for vehicles.” While executing the warrant, the police seized a computer belonging to Plato. Plato then made threats against the police, claiming his computer was improperly seized. He was charged with and convicted of Level 6 felony intimidation for making threats against the police for a prior lawful act—in this case, the seizure of his computer. Plato later sought post-conviction relief, alleging his appellate counsel was ineffective for not arguing on direct appeal that the seizure of his computer was unlawful because it was not specified in the warrant. We find that the police had reason to seize Plato’s computer but not to search the contents without a second, more specific warrant. Because the police acted within the scope of the warrant when they seized Plato’s computer, appellate counsel was not ineffective for not challenging the seizure of Plato’s computer on direct appeal. Accordingly, we affirm the post-conviction court.
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Plato contends his appellate counsel was ineffective.
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Here, to convict Plato of Level 6 felony intimidation, the State was required to prove that he knowingly or intentionally communicated a threat to Detective Dwiggins with the intent that she be placed in fear of retaliation “for a prior lawful act, to wit: seizing Robert J. Plato’s computer pursuant to a lawful search warrant.” Plato argues his appellate counsel was ineffective for not arguing on direct appeal that his computer was unlawfully seized because the warrant did not specify that his computer could be searched or seized.
The Fourth Amendment to the United States Constitution requires that a warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.” Here, the search warrant authorized the Madison County Drug Task Force to search for and seize “paperwork relating to title work for vehicles.” When the search warrant was obtained, the police were investigating Plato for a robbery he had planned that involved forcing the owner of a car lot to sign over titles to three cars. Plato asserts that if the police wanted to seize his computer, then they should have asked to do so when requesting the search warrant. The State responds that Plato’s computer “was plainly covered by the search warrant” because “it was reasonable for [Detective Dwiggins] to believe that paperwork related to title work could have been recorded or stored digitally on Plato’s computer.”
Although neither party directs us to an on-point case, the Ninth Circuit addressed a similar issue in United States v. Giberson, 527 F.3d 882, 887 (9th Cir. 2008). There, law enforcement obtained a warrant to search the defendant’s house for “records” and “documents” related to his use of a false identification.
As here, the warrant did not explicitly authorize the search or seizure of any computers. While executing the search warrant, law enforcement saw a computer, which was connected to a printer. Next to the printer was what appeared to be a sheet of fake identification cards that were not high quality and looked as if they could have been printed on the adjacent printer. Law enforcement seized the computer and obtained a second warrant to search it for records relating to the production of fake identification cards. During the search of the computer, law enforcement discovered evidence of child pornography, and the defendant was charged in federal court with child-pornography-related offenses. The defendant moved to suppress the evidence of child pornography, arguing law enforcement exceeded the scope of the first warrant when it seized his computer. The court denied the motion to suppress, and the defendant entered a conditional guilty plea.
On appeal, the defendant argued his computer was unlawfully seized because the first search warrant did not specify that law enforcement could search or seize a computer. The Ninth Circuit first noted that it had “not yet had occasion to determine, in an opinion, whether computers are an exception to the general principle that a warrant authorizing the seizure of particular documents also authorizes the search of a container likely to contain those documents.” Id. at 887. The defendant asserted that computers are different than other containers (such as filing cabinets and briefcases) and therefore are entitled to “heightened protection” and must be specified in the warrant. Id. The Ninth Circuit rejected the defendant’s argument and concluded that because documents related to the production of fake identification cards were found in and around the defendant’s computer and were arguably created on and printed from it, it was “reasonable for officers to believe that the items they were authorized to seize would be found in the computer, and they acted within the scope of the warrant when they secured the computer.” Id. at 888.
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Here, Plato does not allege that his computer was searched, and thus we are not tasked with addressing the reasonableness of any search. Instead, Plato only challenges the seizure of his computer. But we agree with the Ninth Circuit that a seizure is far less intrusive than a search. Given that the Madison County Drug Task Force’s investigation of Plato involved paperwork, it was reasonable for the police to believe that paperwork (titles) may have been stored in Plato’s computer. Hence, the police had reason to seize the computer but not to search the contents without a second, more specific warrant. Because Detective Dwiggins acted within the scope of the warrant when she seized Plato’s computer, the seizure issue was not clearly stronger than the issues appellate counsel raised on direct appeal. Accordingly, the post-conviction court did not err in finding no ineffective assistance of appellate counsel.
Affirmed.
Mathias, J., concurs.
Pyle, J., dissents with separate opinion.
Pyle, J., dissenting.
I respectfully dissent from my colleagues’ opinion affirming the denial of Plato’s petition for post-conviction relief. The majority ably concludes that Plato’s appellate counsel was not ineffective for failing to challenge on direct appeal the validity of the search warrant used to seize his laptop. Specifically, my colleagues hold that the language contained in the search warrant justifying the seizure of the laptop was sufficient to satisfy the particularity requirement of the Fourth Amendment. However, I believe that the warrant violated the particularity requirement. In addition, the deficiency in the search warrant was obvious from the face of the record and it represented a stronger issue than those raised by appellate counsel. See Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006) (holding appellate counsel ineffective when unraised issue was significant and obvious, stronger than those raised on direct appeal, and precedent was available supporting the unraised issue). As a result, I believe that appellate counsel’s performance fell below prevailing professional norms because the State’s reliance on a lawful search warrant was an essential element of the charged crime. Further, if appellate counsel had cited relevant authority, appellant’s counsel would have likely been successful on direct appeal. Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984), reh’g denied), reh’g denied, cert. denied.
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My colleagues’ approach frustrates the very purpose of the particularity requirement: assuring “the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Groh, 124 S. Ct. at 1292 (emphasis added). The question is whether the term “paperwork” describes Plato’s computer with as much reasonable certainty and particularity as possible under the circumstances. I believe that the search warrant in this case gave law enforcement too much discretion. The term “paperwork” neither described Plato’s laptop with reasonable certainty nor with as much particularity as possible under the circumstances. If the officers had probable cause to believe that a search for evidence of a robbery scheme involving vehicle titles would be found on Plato’s laptop, all they had to do was request the judicial authority to include the term “computers” on the search warrant.
Because appellate counsel did not raise an issue challenging the sufficiency of the evidence, regarding the particularity of the search warrant, I believe appellate counsel’s performance was deficient and that Plato was prejudiced. This issue was significant and obvious from the face of the record and was stronger than the issues raised on direct appeal, likely resulting in reversal on appeal. As a result, I would reverse the post-conviction court’s denial of post-conviction relief.