Case 2:16-mj-01061-TJR Document 13 Filed 02/03/17 Page 19 of 29
analyze where the seizures, if any, occur and where the searches of user data take place. This
requires the court to examine relevant Fourth Amendment precedent. The court recognizes that
the cases discussed below address seizures and searches of physical property. However, these
cases are instructive, and binding, in the absence of Supreme Court or Third Circuit caselaw
addressing such issues as they pertain to the electronic world.
The Fourth Amendment "protects two types of expectations, one involving
'searches' the other 'seizures."' United States v. Jacobsen, 466 U.S. 109, 113 (1984). The
Amendment "protects property as well as privacy." Soldal v. Cook Cty., Ill., 506 U.S. 56, 62
(1992). "A 'search' occurs when an expectation of privacy that society is prepared to consider
reasonable is infringed." Jacobsen, 466 U.S. at 113. "A 'seizure' of property occurs when there
is some meaningful interference with an individual's possessory interests in that property." Id.
See also United States v. Jones, 132 S. Ct. 945, 958 (2012) (Alito, J., concurring) (same);
California v. Hodari D., 499 U.S. 621, 624 (1991) ("From the time of the founding to the present,
the word 'seizure' has meant a 'taking possession."'); Mark Taticchi, Redefining Possessory
Interests: Perfect Copies oflnformation as Fourth Amendment Seizures, 78 Geo. Wash. L. Rev.
476, 477 (2010) ("Courts generally interpret possessory interest to mean physical possession,
even when the property allegedly seized is intangible, like information."). 13
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The Supreme Court has stated with respect to the distinction between a "seizure"
and a "search":
Although our Fourth Amendment cases sometimes refer indiscriminately to
searches and seizures, there are important differences between the two . . . . The
Amendment protects two different interests of the citizen - the interest in
retaining possession of property and the interest in maintaining personal privacy.
A seizure threatens the former, a search the latter. As a matter of timing, a seizure
is usually preceded by a search, but when a container is involved the converse is
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