Caselaw

4th Amendment to the U.S. Constitution

Civil Forfeiture | Consent | Consent via a 3rd Party | Consent via a 3rd Party | Eavesdropping | Immunity | Invalid Subpoena and Privacy Interest | Non-Governmental Search | Off-Site Review | Probable Cause | Reasonable Expectation of Privacy | Retention | Search Warrants: Generally | Search Warrants: Affidavit | Search Warrants: Particularity | Search Warrants: 2nd Warrant | Search Warrants: Scope | Searches | Searches Involving 3rd Parties | Seizures: Generaly | Seizures: Scope of Warrant

§ 1-1 Civil Forfeiture

United States v. 5528 Belle Pond Drive, 783 F. Supp. 253 (E.D. Va. 1991).
A computer used to record data on the defendant's marijuana growing activities was properly forfeited under 21 U.S.C. § 881(a)(7) as being used in the manufacture of a controlled substance.

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§ 1-2 Consent

United States v. Al-Marri, 230 F. Supp. 2d 535 (S.D.N.Y. 2002).
In the wake of the September 11th attacks, the FBI visited the Defendant’s home perusing tips of the Defendant’s allegedly suspicious activity. The FBI agents obtained the Defendant’s consent to search his home and, with his affirmative consent and cooperation, seized his laptop computer, disks, and CDs for further investigation. Investigation of the computer hardware revealed evidence of credit card fraud. The
Defendant moved to suppress the computer evidence, arguing that even if he validly consented to a search of his home, that consent did not encompass the contents of his computer. The Court denied the motion to suppress and ruled that the FBI’s lawful search of the Defendant’s home encompassed the right to search the computer as a closed container.

United States v. Richardson, 304 F.3d 1061 (11th Cir. 2002).
A jury convicted defendant of transporting child pornography in interstate commerce and for possessing materials that contained images of child pornography that had been transported in interstate commerce. On appeal, defendant contended that the District Court erred in denying his motion to suppress the images taken from his zip drive and floppy disks found during a search of his van. As defendant's van was being impounded, defendant signed a form consenting to the vehicle's search. The search uncovered the zip drive and floppy disks. An officer then asked defendant if she and the officers assisting her could take the zip drive and the floppy disks from the van and view their contents. Defendant gave the officers the drive and disks, at which time the officer gave him a property receipt, which he signed. At the suppression hearing before a magistrate, the defendant claimed that he had been coerced into consenting to the search of the van and that the officers had no legal basis for downloading the zip drive and floppy disks. The Magistrate Judge found that the impounding and inventory of the van were legitimate and that defendant's consent to the search was voluntary. The Court find no clear error in these fact-findings or in the legal conclusion that defendant voluntarily consented to the search of the van and the downloading of the zip drive and floppy disks.

United States v. Habershaw, 2002 U.S. Dist. LEXIS 8977 (D. Mass. 2002).
The police went to the defendant's apartment following a report that someone was yelling profanities at children through a loudspeaker. Defendant consented to the officers' entry and later to viewing his computer. The officer saw what appeared to be child pornography sites and asked to search further and, with the defendant’s help, found an illegal picture of a nude 11 year old girl. After being told that the officers would seize the computer due to the illegal picture, the defendant knowingly signed a valid Consent-To-Search form. Subsequently, a search warrant for the computer and floppy discs seized from the defendant was applied for and received. Defendant, who was charged with possession of child pornography, moved to suppress the fruits of a warrantless search of his apartment, and of a later search of his computer pursuant to a warrant. He claimed that the police lacked a valid consent to search, and that the warrant was not supported by probable cause and failed to particularize the items to be searched in violation of Fed. R. Crim. P. 41. The Court found that defendant's initial consent reasonably included the computer room and it was reasonable to believe that the scope of the consent had broadened from the originally stated purpose. Based on the officer's observation of children-oriented pornographic websites, probable cause existed to search the computer under the plain view doctrine. Moreover, defendant voluntarily signed a consent form; his mental state did not preclude the voluntariness of his consent nor was he coerced or intimidated. Whether or not the offending picture was attached to the warrant affidavit, the computer search was still supported by probable cause or valid under the good faith exception.

United States v. Furrow, 229 F.3d 805 (9th Cir. 2000), overruled in part, U.S. v. Johnson, 256 F.3d 895 (9th Cir. 2001).
The court found an initial search of a home by officers was unlawful, as it was conducted without a warrant and did not fall within one of the recognized exceptions to the warrant requirement. However, a subsequent search conducted pursuant to consent was not "tainted fruit of the poisonous tree," as the consenting suspect had no knowledge of the prior search nor was he threatened by the police officers and, therefore, neither circumstance cast doubt on the voluntariness of his decision to consent.

United States v. Carey, 172 F.3d 1268 (10th Cir. 1999).
Consent to search the premises and property of the defendant's home, with further qualification that any property may be removed by officers if essential to prove the commission of any crime, permitted only the seizure of computer equipment and did not permit the opening of files contained on the computer's hard drive that did not relate to the sale and distribution of controlled substances. A warrant was necessary in order to open any files on the computer that involved child pornography due to the fact that no exigency was found to have existed as the computer was in police custody.

United States v. Turner, 169 F.3d 84 (1st Cir. 1999).
In a search for evidence relating to an assault on the defendant's next door neighbor, officers obtained consent from the defendant premised on the officers' statements that they were going to search for "any signs the suspect had been inside [the defendant's apartment]," "any signs a suspect had left behind, or anything of that sort," and "evidence of the assault itself." Where the officers then proceeded to search files on the defendant's computer after a nude photograph of a woman appearing similar to the victim had suddenly "popped up" on the screen, the search was held to have exceeded the scope of the consent because it was objectively reasonable to believe, from the exchange between police and the defendant, that the police were going to search for physical evidence linked to the crime scene, not documentary or photographic evidence, or anything else that might have been stored on a computer.

United States v. Reyes, 922 F. Supp. 818 (S.D. N.Y. 1996).
An officer who seized a pager from a vehicle pursuant to a search authorized by consent of the car owner, did not exceed the scope of consent by viewing the numbers contained on the pager. As the officers did not inform the defendant what evidence they were seeking, "[defendant]’s general consent must be taken to include consent to search the memory." The court analogized to Snow (U. S. v. Snow, 44 F.3d 133 (2d Cir. 1995)) stating "one who consents to a search of a car ‘should reasonably expect that readily-opened, closed containers discovered inside the car will be opened and examined’."

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§ 1-3 Consent via a 3rd Party

United States v. Rith, 164 F.3d 1323 (10th Cir. 1999).
Officer’s search of a home (including son’s bedroom) conducted pursuant to both parents’ consent was valid despite the fact that their 18-year-old son was the only occupant of the home present during the search. The father provided officers with a key to the residence and requested that they search for illegal weapons, stating that he did not want to be present during the search. Although the son objected to the search of the home, the court determined that the son did not have authority to revoke his father’s valid third party consent to the search. (Citing U. S. v. Matlock, 415 U.S. 164 (1974).) Factors evaluated in determining validity of consent included: parent and child relationship, no prior agreement between co-tenants regarding exclusivity or access to child’s room, and lack of any rental agreement or rent payment.

United States v. Whitfield, 939 F.2d 1071 (D.C. Cir. 1991).
Third party (parental) consent based upon "mutual use" or equal access is valid consent to search adult child's room. However, containers or clothing within the room were not within the context of consent because there was no evidence of "mutual use". It is the government's burden to establish that a third party had authority to consent to a search. The burden cannot be met if agents, faced with an ambiguous situation, proceed without making further inquiry. If the agents do not learn enough — if it is unclear whether the property about to be searched is subject to "mutual use" by the person giving consent — "then warrantless entry is unlawful without further inquiry." The evidence here was suppressed.

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§ 1-4 Containers

United States v. O’Razvi, 1998 U.S. Dist. LEXIS 10860 (S.D.N.Y. 1998).
There is a reasonable expectation of privacy for data stored in devices (media) parallel to that of closed containers. Caution is recommended when proceeding in warrantless contexts. Where contents of individual files on defendant’s disks (contained within a briefcase) was obtained pursuant to an inventory search of (defendant’s) briefcase, the court held they were erroneously introduced at trial. A follow-up warrant was required.

United States v. Abbell, 963 F. Supp. 1178 (S.D. Fla. 1997).
The court noted with approval the appointment of a taint team in executing documents warrants in law offices, and allowed the removal of all the computers and disks for searching off site. As the government argued, it was the "only alternative which would minimize disruption to the law offices — since copying all of the contents would have required substantial time at the premises." Furthermore, searching agents need not accept a computer disk's label as indicative of the disk's contents.

People v. Loorie, 630 N.Y.S.2d 483 (Monroe County Ct. 1995)
Based on federal cases, the court held that a second warrant to conduct an examination of a computer was not necessary when the first warrant authorized the seizure of various company records and "any and all computer equipment . . . ." A warrant for items need not specify the container in which the item may be found and a second warrant is not necessary to open or otherwise search such a container

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§ 1-5 Eavesdropping

Katz v. United States, 389 U.S. 347 (1967).
The 4th Amendment governs not only the seizure of tangible items, but extends to the recording of statements overheard without any technical trespass recognized under property law. Therefore, the government’s attachment of an electronic listening and recording device to the outside of a public telephone booth and use of that device to electronically listen to and record calls made by a suspect from that booth are a "search and seizure" within the meaning of the 4th Amendment.

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§ 1-6 Immunity

Baughman v. State, 45 Cal. Rptr. 2d 82 (Cal. Ct. App. 1995).
During the execution of a search warrant of a business, the officers inadvertently destroyed the computer disks of the plaintiff, an individual who was renting space from the target of the search warrant. The court held that the officers were immune from liability in the plaintiff’s suit, since they were acting within the scope of their employment during the execution of the search warrant.

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§ 1-7 Invalid Subpoena and Privacy Interest

United States v. Hambrick, 2000 U.S. App. LEXIS 26503 (4th Cir. 2000).
The invalidity of the subpoena issued to an ISP did not trigger the application of the 4th Amendment, as there was no privacy interest in the non-content (subscriber) information obtained as a result of the subpoena. Citing U.S. v. Payner, 447 U.S. 727, 65 L. Ed. 2d 468, 100 S. Ct. 2439 (1980), the court stated it was incorrect to "suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court."

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§ 1-8 Non-Governmental Search

United States v. Hall, 142 F.3d 988 (7th Cir. 1998).
When a computer technician viewed child pornography computer files and notified police of their existence and location, the "search" of computer files by the computer shop technician did not implicate the 4th Amendment as the technician was acting pursuant to a request by the defendant and was performing repairs and service. However, further actions taken by the technician after contacting police, such as the copying of computer files by the computer shop at the officer’s request, would implicate the 4th Amendment.

United States v. Pervaz, 118 F.3d 1 (1st Cir. 1997).
In evaluating whether the employees were acting as agents of the government, the court acknowledged the pertinence of the following factors: "the extent of the government's role in instigating or participating in the search, its intent and the degree of control it exercises over the search and the private party, and the extent to which the private party aims primarily to help the government or to serve its own interests." While the ECPA [18 U.S.C. § 2511(2)(a)(i)] allows monitoring by a company providing communication service when necessary to protect its rights or property, if the company’s employees were acting as "government agents, the requirements of the 4th Amendment would override statutory authority.” The Court upheld the monitoring of the defendants' calls by cellular phone company, instigated after a Secret Service agent told the company that customers were being defrauded by an illegal cloning operation, was upheld as having been done independent of government. Because the company monitored calls without consulting or informing the agent, it had a legitimate independent motivation for its search: to prevent a fraud from being perpetrated on its customers.

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§ 1-9 Off-Site Review

United States v. Horn, 187 F.3d 781 (8th Cir. 1999).
The court held that it was appropriate to remove the defendant's entire 300-tape collection for off-site examination because child pornography is commonly spliced into innocuous tapes for concealment.

United States v. Gawrysiak, 972 F. Supp. 853 (D.N.J. 1997).
The court's statements concerning the seizure of computer material is dicta because the government chose to rely only on the paper records seized at the execution of the warrant and to return all of the computer files, unread, to the defendants. The court did note, however, that it is not always necessary to conduct an on-site search or examination of data when it would take weeks to accomplish and appropriate procedures are in place to ensure that the terms of the warrant are complied with if the material is taken off site.

United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995).
In executing a search warrant for child pornography, the fact that the executing officers chose not to review each video tape, audio tape, and document on the premises does not make this search presumptively invalid. The defendant will have to show specific examples of seized items that would demonstrate an absence of the executing officers' good faith belief that the items were described in the warrants.

United States v. Schandl, 947 F.2d 462 (11th Cir. 1991).
Seizure of documents exceeding the scope of a warrant does not automatically invalidate an otherwise valid search where the "vast majority" of documents seized were in the scope of the warrant and where insisting on checking each item on site would increase the intrusiveness of the search.

United States v. Sissler, 1991 U.S. Dist. LEXIS 16465 (W.D. Mich. 1991).
Police executing a warrant at a residence are not obligated to conduct an on-site examination of a computer and disks if they are password-protected, and may remove them in order for a computer expert to bypass such security measures.

United States v. Kufrovich, 997 F. Supp. 246 (D. Conn. 1987), overruled in part, United States v. Griffith, 284 F.3d 338 (2nd Cir. 2002).
Where officers seized computers specified in a warrant and searched the entire system off site for relevant files, the officers did not exceed the scope of the warrant. While many of the computer files searched did not constitute evidence for this case, their search was anticipated by an appendix to the warrant that explained the ease of hiding evidence in a computer, and the necessity of executing a complete search.

United States v. Tamura, 694 F.2d 591 (9th Cir. 1982).
Where documents are so intermingled that they cannot feasibly be sorted on site, law enforcement officials should seal and hold the documents until the warrant can be expanded or a subsequent warrant is obtained, unless removal of the material for searching off site has been justified (on-site searching unfeasible; no other practical alternative known) and specifically authorized in the original warrant based on what officers knew when applying for it.

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§ 1-10 Probable Cause

United States v. Zimmermann, 277 F.3d 426 (3rd Cir. 2002).
The search warrant application did not contain any information that the defendant ever possessed child pornography on his home computer, much less that child pornography would be found in his home on the day of the search. There was information that one video clip of pornography had been accessed via the Internet from the defendant’s home several months earlier, but that information was stale. Therefore, there was no probable cause to search the defendant’s home for evidence of adult or child pornography.

United States v. Hay, 231 F.3d 630 (9th Cir. 2000).
Sufficient probable cause for searching a computer for child pornography existed when: an FTP log showed direct transmissions of pornography to the "incoming" file of a computer with a known IP address, defendant’s computer utilized that IP address, defendant was the exclusive user of that computer, and the defendant’s own website reflected an "extreme" interest in young children.

United States v. Horn, 187 F.3d 781 (8th Cir. 1999).
A search warrant issued for child pornography was anticipatory, but there were two main recitations of probable cause: one based on correspondence the defendant admitted to having with a woman in Texas; the other based on the defendant's (anticipated) receipt of a child pornography video. The court held that each of the two recitations separately constituted adequate probable cause for a search warrant to issue. The court also held that 3-month old information was adequate to establish probable cause given the continuing nature of possession of child pornography and given that there was a "deep and continuing interest" in the subject displayed by the defendant in his correspondence with the undercover officer.

United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998).
Defendant sought review of a judgment from the District Court which convicted him upon a jury trial of receiving child pornography in violation of 18 U.S.C.S. § 2252(a)(2). The court affirmed appellant's jury conviction for receiving child pornography in violation of 18 U.S.C.S. § 2252(a)(2). The conviction was based on images stored in computer files which were obtained during the execution of a search warrant. The search warrant was issued pursuant to information obtained by a law enforcement agent in an Internet chat room. The court held that the judge who issued the search warrant properly concluded there was probable cause to believe that evidence of unlawful activity would be found on appellant's computer equipment even though the requesting detective provided no copies of unlawful materials believed to be in Simpson's possession, nor did he describe in detail the content of those materials; he simply outlined the cash-for-video exchange deal that had been brokered. Additionally, the court concluded there was sufficient evidence suggesting there was probable cause to believe appellant actually possessed illegal materials. Evidence depicting child pornography and evidence consisting of a computer printout of the chat room discussion were properly admitted by the trial court.

United States v. Isgut, 1996 WL 775064 (S.D. Fla. 1996) (not reported in F.Supp.).
If any probable cause existed, it was rendered stale by the one year time period between the defendant’s last known child pornography computer transaction and the government’s obtaining of a search warrant. No dates of transactions were included in affidavit in support of the search warrant, and the affiant did not include an opinion that the defendant was a collector of child pornography.

United States v. Winningham, 953 F.Supp. 1068 (D. Minn. 1996).
A period of six weeks between a social worker's first-hand observation of sexually suggestive photographs of young girls in defendant's possession and the issuing of a search warrant was insufficient period of delay to make the evidence stale and make the execution of the search warrant unreasonable. A finding of probable cause was proper.

United States v. Harvey, 2 F.3d 1318 (3rd Cir. 1993).
Defendant was convicted for involuntary deviate sexual intercourse with a minor in 1977, and deported from the Philippines in 1988 for “being a pedophile.” He received mailings from organizations known or believed to be distributing child pornography between April and July of 1990. A search warrant, executed in October of 1991 was upheld. There was a reasonable probability the several mailings from child pornographers would be at Harvey's residence at the time of the search. Therefore, the evidence was not stale, and probable cause still existed.

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§ 1-11 Reasonable Expectation of Privacy

Rogers v. State, 2003 Tex. App. LEXIS 4857 (Tex. Ct. App. 2003).
After defendant brought his computer into a repair store, the computer technician found child pornography and notified police. A forensic search of the computer was later undertaken in which images of child pornography were confirmed. Defendant was charged and later pled guilty to possession of child pornography. The defendant appealed the trial court’s denial of his motion to suppress and argued that that the trial court erred by finding he lost his reasonable expectation of privacy in his computer files. The Court of Appeals affirmed that trial court’s decision. In coming to this decision, the Court found that, although defendant had an interest in the hard drive, he did not have complete dominion or control, as he voluntarily relinquished control to the repair store; likewise, the Court found that the defendant did not take normal precautions to protect his privacy, as he expressly directed the technician to back up the files. Thus, appellate court held that, by requesting that the technician back up the files, defendant voluntarily relinquished them and standard operating procedure required the files to be viewed during that process; therefore, he had no reasonable expectation of privacy in the computer files.

United States v. Angevine, 281 F.3d 1130 (10th Cir. 2002).
Defendant, a university professor, used his university computer to download pornographic images of young boys, which was contrary to University policy. The university had a computer policy explaining appropriate computer use and describing to employees how officials monitor the university computer network. The police obtained a search warrant to look for child pornography on the defendant’s university computer. The defendant subsequently pled guilty to knowing possession of child pornography. On appeal, defendant argued that the district court improperly denied his motion to suppress when it held that he had no expectation of privacy in his office computer due to the University’s computer policy. The Court of Appeals determined that the defendant could not have an objectively reasonable expectation of privacy because reasonable university computer users should have been aware network administrators and others were free to view data downloaded from the Internet. This conclusion was supported by the fact that the pornographic images seized by police were not within defendant's immediate control after attempting to erase the images and that the defendant did not take actions consistent with maintaining private access to the seized pornography. Thus, the defendant’s motion to suppress was properly denied.

United States v. Slanina, 283 F.3d 670 (5th Cir. 2002).
Defendant, who was a city employee, allowed a co-worker, who was working after hours, to work on the defendant’s office computer. When the co-worker was unable to access it, defendant appeared at the office and accessed the computer. After the defendant left, the co-worker discovered pornographic material on the computer, contrary to policy, and reported it to the supervisor. The supervisor, beginning his task of investigating employee misconduct, searched the computer. Eventually numerous pictures of child pornography were found on the computer. Subsequently, the defendant was convicted of possession of child pornography. Defendant appealed the conviction, alleging that he had an expectation of privacy and arguing that the District Court should have granted his motion to suppress evidence obtained from computer equipment in his office and home, as well as his statements to law enforcement. The Court of Appeals found that given the absence of a city policy placing defendant on notice that his computer usage was monitored and the lack of any indication that other employees had routine access to his computer, defendant had a reasonable expectation of privacy. The supervisor's search was reviewed under the O'Connor standard, which states that a search by a government employer must be justified at its inception and reasonably related to the circumstances justifying the interference in the first place. O’Connor v. Ortega, 480 U.S. 709 (1987). The Court found that the supervisor's warrantless search of defendant's office computer equipment was reasonable under O'Connor and that defendant's extreme cooperation during the meeting in the supervisor's office and once they arrived at his house supported the admission of the evidence from the office computer.

United States v. Knights, 534 U.S. 112 (2001).
Defendant moved to suppress evidence found in his apartment during a search conducted pursuant to a probation condition consenting to searches. The court found that the search was reasonable under the general Fourth Amendment approach of examining the totality of the circumstances, with the probation search condition being a salient circumstance. The Court found that defendant's status as a probationer subject to a search condition diminished his reasonable expectation of privacy. Although the Fourth Amendment ordinarily required probable cause, a lesser degree satisfied the United States Constitution when the balance of governmental and private interests made such a standard reasonable. The Court found that when an officer had reasonable suspicion that a probationer subject to a search condition was engaged in criminal activity, there was enough likelihood that criminal conduct was occurring that an intrusion on the probationer's significantly diminished privacy interests was reasonable. The district court found, and defendant conceded, that the search was supported by reasonable suspicion. Thus, the court held that the warrantless search of defendant, supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment.

United States v. Kennedy, 81 F. Supp. 2d 1103 (D. Kan. 2000).
There is no 4th Amendment privacy interest in subscriber information, as it is "voluntarily turned over to a third-party" when it is transmitted to the Internet service provider (referring to Smith v. Maryland, 442 U.S. 735 (1979) ). When the defendant entered into an agreement with Road Runner for Internet service, he knowingly revealed all information connected to the IP address.

United States v. Hambrick, 55 F. Supp. 2d 504 (W.D. Va. 1999), aff’d, 225 F.3d 656 (4th Cir.
2000).
A subscriber has no reasonable expectation of privacy in the transactional records maintained by his Internet service provider. The ECPA does not represent a legislative determination of a reasonable expectation of privacy in non-content information released by ISPs. Additionally, the Stored Communications Access Statute of the ECPA does not provide for the relief requested in this case, namely in the form of suppression.

United States v. Simons, 29 F. Supp. 2d 324 (E.D. Va. 1998), aff’d in part, remanded in part, 206 F.3d 392 (4th Cir. 2000).
There is no reasonable expectation of privacy in Internet use by public employees where an agency has a known policy of monitoring, identifying, and prosecuting unauthorized activity. The employer’s "special needs" exception to the search warrant requirement (when a government employer conducts a search pursuant to an investigation of work-related misconduct, the 4th Amendment will be satisfied if the search is reasonable in its inception and its scope — O’Connor v. Ortega, 480 U.S. 709 (1987)) is valid even if the warrantless search is to acquire evidence of criminal activity. The employer did not lose its special need for "the efficient and proper operation of the workplace," merely because the evidence obtained was evidence of a crime.

U.S. v. Monroe, 50 M.J. 550 (A.F.C.C.A. 1999), affirmed by, United States v. Monroe, 52 M.J. 326 (C.A.A.F. 1999).
A reasonable expectation of privacy does not exist for e-mails that are in a computer network server or e-mailbox, both of which are owned and controlled by the government. Important to the holding is that the network utilized was "an insular setting of a government system which acted as a gateway between its users and the Internet and which had known specific limitations on use." When a sender sends or receives illicit transmissions (contrary to network rules) with the capacity to disturb or clog a network system, the sender assumes the risk that those files will be discovered and viewed. "Traditional search and seizure law always has upheld the search of personal property which is found in a location where it might impede an official function." Therefore, there is no reasonable expectation of privacy in files which clog a network system.
Likewise, there is no expectation of privacy in the unauthorized use of government property. Defendant’s e-mail account, despite being password protected, was government property. As such, defendant had no privacy interest in the account (against those with external authority to access), even though it was capable of being secured.

United States v. Charbonneau, 979 F. Supp. 1177 (S.D. Ohio 1997).
There is no reasonable expectation of privacy in chat room conversations. "Chatter" assumes the risk that an undercover agent could be present.

United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996).
The sender of an e-mail message enjoys a reasonable expectation of privacy that police will not intercept it without probable cause and a search warrant. However, (as with a letter) once the transmission is received by another person, the sender no longer controls its destiny. When the communication has been received and opened, the destiny of the letter then lies in the control of the recipient of the communication, not the sender. Additionally, communications, such as letters or messages, sent over the computer are generally protected by the 4th Amendment’s expectation of privacy. However, once the communication has been sent, that expectation of privacy diminishes incrementally, depending "in large part on the type of e-mail involved and the intended recipient." The more open the method of transmission is, the less privacy one can reasonably expect. Messages sent to the public at large in the "chat room" or e-mail that is "forwarded" from correspondent to correspondent loses any semblance of privacy.

United States v. Maxwell, 42 M.J. 568 (A.F.C.C.A. 1995), aff’d in part, rev’d. in part, remanded, 45 M.J. 406 (C.A.A.F. 1996).
A person has a reasonable expectation of privacy in e-mail messages stored in computers that he alone could retrieve through use of his own assigned password.
An objective expectation of privacy exists with regard to e-mail messages that a person transmits electronically to other subscribers of the same Internet service who have individually assigned passwords.

O’Connor v. Ortega, 480 U.S. 709 (1987).
Warrantless search of a government employee’s desk and file cabinets is permissible under the 4th Amendment if it is reasonable in scope and if it is justified at its inception by a non-investigatory, work-related need or a reasonable suspicion of work-related misconduct.

Katz v. United States, 389 U.S. 347 (1967).
The 4th Amendment protects people, not places, against unreasonable searches and seizures. Thus, something knowingly exposed to the public, even in the person’s own home or office, is not protected by the 4th Amendment, but something the person seeks to keep private, even in an area accessible to the public (such as a telephone booth), may be protected. The reach of the 4th Amendment protections do not depend on whether there was a technical, physical intrusion into an enclosure, so the "trespass" doctrine of Olmstead v. United States, 277 U.S. 438 (1928), and Goldman v. United States, 316 U.S. 129 (1942), is abandoned. In a concurring opinion, Justice Harlan stated that to be protected by the 4th Amendment, a person must have an actual, subjective expectation of privacy, and such expectation must be objectively reasonable (one that society is prepared to recognize as "reasonable").

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§ 1-12 Retention

United States v. Tamura, 694 F.2d 591 (9th Cir. 1982).
Retention of seized documents not described in a warrant is not permissible.

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§ 1-13 Search Warrants: Generally

State v. Jackson, 76 P.3d 217 (Wash. 2003).
The Washington Supreme Court held that the state constitutional provision that no person shall be disturbed in his private affairs or have his home invaded without the authority of law will be violated by a warrantless installation and use of a GPS tracking device on an automobile. The use of such devices is a particularly intrusive method of surveillance, rather than mere sensory augmentation. However, no constitutional violations occurred in this case. The warrants contained time limitations, the place to be searched was the travel pattern of the vehicles after placement of the GPS devices, and the item to be seized was the location of defendant's movements. Therefore, the warrants authorizing the use of the devices were valid.

United States v. Albert, 195 F.Supp.2d 267 (D. Mass. 2002).
Defendant had shown an informant a CD-ROM containing 1,500 images of child pornography four months earlier. The evidence was determined not to be stale, and the search warrant was upheld, despite not referencing a list of particular items to be seized from the defendant’s apartment. The list was attached to the warrant, and ultimately guided the agents’ search of the apartment. The lack of specific reference to the list of items was harmless error and the search warrant was properly executed.

United States v. Campos, 221 F.3d 1143 (10th Cir. 2000).
A warrant authorizing the seizure of computer equipment "which may be, or [is] used to visually depict child pornography, child erotica, information pertaining to the sexual activity with children or the distribution, possession, or receipt of child pornography, child erotica or information pertaining to an interest in child pornography or child erotica" is sufficiently specific to meet 4th Amendment particularity requirements for a warrant.

United States v. Grosenheider, 200 F.3d 321 (5th Cir. 2000).
The initial warrantless seizure of a computer by a vice-officer does not invalidate the subsequent independent re-seizure (with a warrant) of the computer by a federal customs agent. Evidence obtained in such a re-seizure is not the "tainted fruit" of any illegality, as the information obtained in the initial illegal search/seizure was not used as a foundation for obtaining the subsequent warrant. Evidence was held as available through "independent source" or "inevitable discovery" doctrine.

United States v. Hay, 231 F.3d 630 (9th Cir. 2000).
A search warrant for child pornography was not stale despite the passing of six months since the documented transmission of child pornography files to the defendant before issuance of the warrant, because a magistrate could reasonably believe the evidence would still be found on the defendant’s computer. Justification was provided by the officer’s affidavit stating (among other things): collectors of child pornography rarely dispose of it, store it for long periods, and even if deleted, the files could be recovered by a computer expert.

State v. Lehman, 736 A.2d 256 (Me. 1999).
Child exploitation case. Describing items to be seized as: "all computer
equipment and computer related equipment, including, but not limited to laptops,
monitors, keyboards, printers, mice, modems, hard drives, CD roms [sic], photo scanners, computer disks, tapes, programs to run computers, and access data, manuals on operations of systems and programs, which [defendant] would have been able to access, including, but not limited to, copies of the contents thereof" was as specific as possible under the circumstances. The police knew that underage females had been photographed with a digital camera and the images transferred to a computer. The warrant did not need to limit seizure of computer equipment to that which was on the second floor (as one victim had described) because of the mobility of the equipment and the fact that the sexual exploitation occurred throughout the premises.

United States v. Gray, 78 F. Supp. 2d 524 (E.D. Va. 1999).
While systematically searching a computer and all files pursuant to office policy and justified by a warrant, where investigators discovered files of child pornography [not anticipated in the warrant] and obtained a subsequent search warrant to actually search for child pornography, it was held that the pornography files were in plain view and actions were within scope of warrant. (Cites U.S. v. Carey, 172 F.3d 1268 (10th Cir. 1999)).

United States v. Upham, 168 F.3d 532 (1st Cir. 1999).
A warrant describing what was to be seized as "[a]ny and all computer software and hardware, . . . computer disks, disk drives . . ." was sufficiently particular and the subsequent off-site seizure was "about the narrowest definable search and seizure reasonably likely to obtain the images. A sufficient chance of finding some needles in the computer haystack was established by the probable-cause showing in the warrant application." In addressing the recovery of deleted images, the Court stated that "the seizure of unlawful images is within the plain language of the warrant; their recovery, after attempted destruction, is no different than decoding a coded message lawfully seized or pasting together scraps of a torn-up ransom note." Citing to Commonwealth v. Copenhefer, 587 A.2d 1353 (Pa. 1991).The fact that the mechanics of the search could not have readily been performed on site [the files to be undeleted and a reformatted hard-drive analyzed] justified the seizure of all computer equipment, including equipment that potentially contained no images and had no connection to the crime.

United States v. Evans, 994 F. Supp. 1340 (D. Kan. 1998).
Cocaine trafficking case. The seizure of "all forms of computer hardware, software, and memory devices associated with the computer systems" was as specific as possible under the circumstances and therefore permissible. The warrant made clear that "officers were limited to the seizure of items related to cocaine trafficking and the expenditure of monies after January 1, 1994. The description of the computer equipment was as specific as possible since officers executing the warrant could not determine what information was contained in them until an evaluation was later conducted."

United States v. Ezeh, 1998 U.S. Dist. LEXIS 7438 (N.D. Ill. 1998)
A listing of multiple computing devices and storage media was not overbroad where the warrant limited every category of property subject to search to those involved in the importation and distribution of heroin.

Davis v. Gracey, 111 F.3d 1472 (10th Cir. 1997).
A warrant stating "equipment pertaining to distribution or display of pornographic material" is sufficiently particular to justify seizure of computer equipment, without being overbroad.

In re Grand Jury Investigation Concerning Solid State Devices, Inc., 130 F.3d 853 (9th
Cir. 1997).
The scope of execution of a warrant not specifying illegal acts under investigation but authorizing seizure of a wide array of documents and data storage devices is overbroad where the suspect business appears to be engaged in some legitimate activity and there is an insufficient showing of probable cause to believe that a majority of its operations are fraudulent (i.e., that it is "pervaded by fraud").

United States v. Humphrey, 104 F.3d 65 (5th Cir. 1997).
The search warrant for the home of husband and wife was held valid even with normally impermissible "all records" language in the warrant. Despite noting that exceptional circumstances were required to permit such generic terms in a warrant to comply with 4th Amendment requirements for particularity, the court held that the search warrant was valid in the light of the pervasive nature of the fraud, the considerable overlap of the Humphreys' business and personal lives (the residence was the primary place of business), and the limitation of the warrant to records pertaining to financial transactions.

United States v. Lacy, 119 F.3d 742 (9th Cir. 1997).
A warrant authorizing seizure of the entire computer system was not too general where the affidavit showed that the entire system was "likely to evidence criminal activity" and where the warrant contained objective limits to help officers determine which items they could seize, such as allowing seizure of documents linked to the foreign BBS from which the defendant was alleged to have downloaded images of child pornography.

United States v. Maxwell, 42 M.J. 568 (A.F.C.C.A. 1995), aff’d in part, rev’d in part, remanded, 45 M.J. 406 (C.A.A.F. 1996).
A search warrant that authorized the search of a residence and seizure of "obscene materials relating to defendant’s activities with online computer services or bulletin boards" was sufficiently particular to withstand the challenge of overbroadness. But, a search warrant that calls for seizure of e-mail transmissions addressed to a specific e-mail box (for a distinct username) is defective for the purpose of seizing e-mail transmissions addressed to a separate e-mail box (with a different username) even if owned by the same user with the same Internet provider. Nevertheless, a typographical error in the description of the place or thing to be searched does not invalidate the search when the intended place or thing is searched pursuant to the warrant.

State v. Riley, 846 P.2d 1365 (Wash. 1993).
A warrant is insufficiently particular where items to be seized include a laundry list of computer- or telephone-related items and no limiting language whatsoever, not even reference to a statute. Assuming arguendo that the affidavit did have language that could cure search warrant defects, the affidavit must be attached to the warrant and specifically incorporated with the appropriate language.

United States v. Falon, 959 F.2d 1143 (1st Cir. 1992).
The court considered a search warrant affidavit seeking to seize from the defendant's business and home, "documents, records, and other tangible objects" relating to the defendant and the defendant's company. According to the court, in an "all records" search of a defendant's home premises, the accompanying affidavit must contain a sufficient link between the records sought and the alleged criminal activity, so that "innocent, personal materials" will not fall within the sweep of the warrant. This "all records" warrant was held partially invalid because "the defendant’s entire life is not consumed with fraud."

United States v. David, 756 F. Supp. 1385 (D. Nev. 1991).
While the warrantless seizure of a computerized book was justified by exigent circumstances relating to the imminent destruction of evidence, search of the book subsequent to its seizure required the issuance of a warrant. The computerized book is equivalent to a closed container — once it is seized by police, the exigency is cured.

State v. Wade, 544 So. 2d 1028 (Fla. Dist. Ct. App. 1989).
It is permissible to have the assistance of advisers (here, a competitor’s employees) to identify computer-related items encompassed by a search warrant. Also, when the information in support of a search warrant is lengthy, an exhibit may be attached and incorporated by reference.

United States v. Musson, 650 F. Supp. 525 (D. Colo. 1986).
Officers executing a warrant authorizing the seizure of "any records or writings of whatsoever nature" pertaining to the defendant’s crime did not exceed the scope of the warrant by seizing computer diskettes in addition to boxes of paper documents. Citing United States v. Reyes, 798 F.2d 380 (10th Cir. 1986), the court stated that "in the age of modern technology and commercial availability of various forms of items, the warrant could not be expected to describe with exactitude the precise form the records would take." In addition to this, the warrant that authorized seizure of "any records or writings of whatsoever nature showing any business or financial transactions in the name of, or for the benefit of, any of the previously-mentioned individuals or entities" was not overbroad or an "all records" warrant. "When there is probable cause to believe that every aspect of a business [here, money laundering] is pervaded by a scheme to defraud, a warrant may be obtained authorizing seizure of all of the records of a business." "The Supreme Court … has suggested that the specificity requirement is necessarily relaxed when a complex scheme is under investigation, since the whole scheme can only be shown 'by placing in the proper place the many pieces of evidence that, taken singly, would show comparatively little'." (Citing Andresen v. Maryland, 427 U.S. 463 (1976))

United States v. Sawyer, 799 F.2d 1494 (11th Cir. 1986).
A warrant listing general categories of business records, including "computer records and printouts relating to customer accounts, . . . which are evidence and fruits of . . . [crime]" did not violate the 4 th Amendment.

Andresen v. Maryland, 427 U.S. 463 (1976).
A warrant authorizing the seizure of an exhaustive list of particular documents and containing the phrase, "together with other fruits, instrumentalities and evidence of crime at this [time] unknown" was sufficiently specific to not be a general warrant in violation of the 4th Amendment.

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§ 1-14 Search Warrants: Affidavit

People v. Gall, 30 P.3d 145 (Colo. 2001).
Exclusion of evidence was erroneous where the search was conducted in reasonable good faith reliance on the warrant, even though the affidavit failed to include information from which the magistrate could independently evaluate the affiant’s identification of the defendant’s specific apartment number.

United States v. Grant, 218 F.3d 72 (1st Cir. 2000).
Evidence of Internet activity under a user’s screen name, even though an individual other than the account’s registrant might have accessed the account illicitly, is not per se insufficient to establish probable cause for a search warrant with respect to the registrant.
Probable cause existed to believe that authorities would find similar evidence of criminal activity in the defendant’s home (1) where his screen name was used to log into an Internet channel dealing with child pornography; that generally required the account holders possess at least 10,000 images of children engaging in sexually explicit conduct and access to an FTP server on which those images could be made available to other members; (2) where that same screen name was registered to and accessed through defendant’s account; (3) where defendant also maintained another account that was configured as an FTP server; (4) and where the search of another channel member's home had resulted in the discovery of about 42,000 images of child pornography on the sort of computer storage devices that might be found at an individual's residence. Also, in determining whether a defendant is entitled to an evidentiary hearing on a suppression motion relating to a search warrant affidavit, the affidavit is presumed valid (citing Franks v. Delaware, 438 U.S. 154 (1978), and U.S. v. Spinosa, 982 F.2d 620 (1st Cir. 1992) (quoting Franks)), but that presumption may be surmounted by a showing that it contains either a "false statement [made] knowingly and intentionally, or with reckless disregard for the truth," Franks, 438 U.S. at 155, or "technically accurate statements" that "have been rendered misleading by material omissions," United States v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993).

United States v. Scott-Emaukpor, 2000 U.S. Dist. LEXIS 3118 (W.D. Mich. 2000).
An affidavit that is sufficiently detailed, and indicates that a confidential informant was credible and gave reliable (e.g., at least partially corroborated) information, provides a "substantial basis" for concluding that a search of the specified place will lead to evidence of crime, thus meeting the "totality of the circumstances" test of Illinois v. Gates, 462 U.S. 213 (1983).

United States v. Kow, 58 F.3d 423 (9th Cir. 1995).
The government could not rely on the agent’s affidavit to cure the overbreadth of the warrant for the following reasons: There was no evidence that the officers who executed the warrant actually relied on the information in the warrant to limit the search, and the affidavit itself did not offer the level of guidance necessary to cure the facially invalid warrant.

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§ 1-15 Search Warrants: Particularity

People v. Carratu, 755 N.Y.S.2d 800 (N.Y. Sup. Ct. 2003).
Defendant moved to suppress computer evidence seized from his home and subsequently searched by the police department’s computer forensic examiners. The Defendant claimed that the search warrants and supporting affidavits limited the search to documentary evidence relating to his illegal cable box operation and thus, the forensic examiner violated the Defendant’s Fourth Amendment rights upon inspection of non-textual files with folder names clearly relating to other illegal activity. Granting the suppression motion, in part, the court stated, “In view of the Fourth Amendment's ‘particularity requirement,’ a warrant authorizing a search of the text files of a computer for documentary evidence pertaining to a specific crime will not authorize a search of image files containing evidence of other criminal activity.”

United States v. Hall, 142 F.3d 988 (7th Cir. 1998).
A warrant was sufficiently particular in a search for child pornography where phrases specifically describing the type of material sought were used. Items listed in the warrants were qualified by phrases ("child pornography," "minors engaged in sexually explicit conduct," and "sexual conduct between adults . . . and minors") that emphasized that the items sought were those related to child pornography. Therefore, police officers executing the warrants were not unguided and free to rummage through property.

United States v. Hunter, 13 F. Supp. 2d 574 (D. Vt. 1998).
The defendant challenged the wholesale seizure of his computer equipment (hardware, software, and documentation) as violative of the 4th Amendment’s particularity requirement. The court agreed that while the government devised a plan to ensure that all relevant computer records were retrieved without undue intrusion, the warrant itself was defectively composed. As a result, the seizure of all computers and related equipment was authorized without limitation and without reference the specific crimes for which the equipment was sought, and in violation of the 4th Amendment. However, the court refused to grant suppression of the evidence, relying instead on the "good faith" exception to the exclusionary rule.

United States v. Kufrovich, 997 F. Supp. 246 (D. Conn. 1997), overrruled in part, United States v. Griffith, 284 F.3d 338 (2nd Cir. 2002).
"First Amendment rights are not implicated when the materials to be seized are sought as evidence of a crime rather than for their content." (Citing United States v. Stelten, 867 F.2d 446, 450 (8th Cir. 1989).) Even if 1st Amendment rights had been implicated, the language in the warrant authorizing a search for "depictions of minors engaged in sexually explicit conduct, as defined in Title 18 U.S.C. § 225," has been held to meet even a heightened standard of particularity. (Citing United States v. Weber, 923 F.2d 1338, 1343 (9 th Cir. 1991).)

United States v. Kow, 58 F.3d 423 (9th Cir. 1995).
The overbroad warrant did not provide executing agents any standard for determining what could be seized. The warrant should have been limited to a particular time frame, the location of records in particular areas of the office known to contain the incriminating documents, and the relationship to specifically described suspected criminal conduct. Because the warrant was so "facially deficient," the court refused to apply the good faith exception to the exclusionary rule. As no part of the warrant was sufficiently particularized to pass constitutional muster, total suppression was required.

United States v. Sissler, 1991 U.S. Dist. LEXIS 16465 (W.D. Mich. 1991).
When determining whether a warrant meets the particularity requirements of the 4th Amendment, "one of the crucial factors . . . Is the information available to the government." (United States v. Cardwell, 680 F.2d 75, 78 (9th Cir. 1982).) If specific information is not available to the government, the general description "records" meets the requirements of the 4th Amendment.

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§ 1-16 Search Warrants: 2nd Warrant

Commonwealth v. Copenhefer, 587 A.2d 1353 (Pa. 1991), overruled in part, Commonwealth v. Rizzuto, 777 A.2d 1069 (Pa. 2001).
When a computer is properly seized pursuant to a valid warrant, it is unnecessary to obtain an additional warrant to retrieve from the hard drive files that have been deleted from a file directory. An attempted deletion of the files does not create an additional expectation of privacy; thus the retrieval of "deleted" files by an FBI agent with computer expertise using software designed to search for such hidden files is not unreasonable. A "mere hope" for secrecy is not a legally protected expectation.

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§ 1-17 Search Warrants: Scope

United States v. Triumph Capital Group, Inc., 211 F.R.D. 31 (D. Conn. 2002).
In order to prevent spoliation of evidence in a public corporation case, the government sought and obtained a search warrant to search and seize a laptop computer at issue. The warrant did not limit the search to any particular area of the hard drive. However, it did limit the government to search for and seize only certain evidence relating specifically to the charges and to follow detailed protocols to avoid revealing any privileged information. So that the data would not be altered, the government made mirror images of the hard drive and then proceeded with the computer forensic investigation. The Defendants argued that this mirroring amounted to a search and seizure of the entire hard drive and moved to suppress all evidence from the laptop. The court determined that although the search warrant limited the scope of the information that investigators could search for, technical realities required the government to make complete mirror images of the hard drive.

People v. Gall, 30 P.3d 145 (Colo. 2001).
Seizure of five laptop computers from the defendant’s closet was within the scope of the warrant where they were reasonably likely to contain writings, the seizure of which was separately authorized by the search warrant. "[W]here the police were executing a search warrant authorizing the seizure of written materials typically composed, sent, received, or stored on a personal computer, and the executing officers had actually found written materials at the defendant’s residence within the scope of the warrant, it was reasonably likely that apparently operable personal computers also found at that residence would contain similar materials or their functional equivalent." (Note: This decision only approved the seizure of the laptop computers. Search of the contents of the computers was authorized by later, additional warrants and therefore not at issue here.)

United States v. Carey, 172 F.3d 1268 (10th Cir. 1999).
A warrant was obtained to search computer and files for "evidence pertaining to the sale and distribution of controlled substances." While searching, officer discovered an image constituting child pornography which, at "the first picture" caused him to "develop probable cause to believe the same kind of material was present on the other image." Because continuing to search with this "knowledge" constituted "abandon[ing] his search for evidence of drug dealing," a new warrant was required to search images found while executing the drug warrant.

United States v. Hunter, 13 F. Supp. 2d 574 (D. Vt. 1998).
The defendant argued that the search of his home and home office, and subsequent seizure of his computers and disks, exceeded the scope of the warrant because neither the affidavits nor warrant indicated that computers were present, or that the records sought were maintained on computers. The court permitted the search as within the scope of the warrant stating, "Probable cause existed to search for and seize the computer-related property because probable cause existed to search for the records concerning the individuals and entities listed in the other sections of the attachment . . . A finding of probable cause is not predicated on the government's knowing precisely how certain records are stored."

United States v. Sassani, 1998 U.S. App. LEXIS 3731 (4th Cir. 1998).
" 'The degree of specificity required when describing the goods to be seized may necessarily vary according to the circumstances and type of items involved . . . . There is a practical margin of flexibility permitted by the constitutional requirement for particularity in the description of items to be seized.' (United States v. Torch, 609 F.2d 1088 (4th Cir. 1979), quoting United States v. Davis, 542 F.2d 743, 745 (8th Cir. 1976)). Unlike with murder weapons or drugs, when an offense concerns the use of hard copy or electronic files and documents, a court cannot be sure which files will be relevant and the warrant may not be able to state as specifically what should be searched and seized. Therefore, courts have required less particularity in the warrant. (United States v. Torch, 609 F.2d 1088, 1090 (4th Cir. 1979).)" The search warrant listing directed the FBI agents to search those items in the home with direct connection to the alleged crime of the defendant: distribution and receipt of child pornography through the Internet by use of a computer. Courts have been clear that, in the case of child pornography, a warrant allowing seizure of a computer and all its associated printing, storage, and viewing devices is constitutional. The computer, applications, and various storage devices not only may contain evidence of distribution of child pornography, but are also the instrumentalities of the crime.

United States v. Kow, 58 F.3d 423 (9th Cir. 1995).
A warrant to seize business records, including those stored in computers and on storage media, was too general where it failed to limit in any way which documents were to be seized, and lacked information on how the documents related to specific criminal activity. General seizure of business documents is only allowed when the government establishes that the entire business is "permeated with fraud," thus making particularity impossible.

United States v. Sissler, 1991 U.S. Dist. LEXIS 16465 (W.D. Mich. 1991).
Police are not obligated to give deference to computer disk labels placed on them by defendant in determining whether the disks fall within the scope of a warrant.

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§ 1-18 Searches

United States v. Fiscus, 2003 U.S. App. LEXIS 8143 (10th Cir. 2003).
Defendant was on parole for committing a lewd act with a minor and for criminal sexual conduct with a minor. Pursuant to his parole agreement, he agreed to refrain from the violation of any Federal, State, or Local penal law. While on parole, defendant's cousin viewed pornographic images while repairing defendant's computer. He subsequently provided detailed information to the police regarding the images he observed on defendant's computer, defendant's internet capabilities, and defendant's criminal history. Based on this information, the officers conducted a search of defendant’s computer and related software on which they found child pornography. Defendant was subsequently charged with possession of child pornography. He moved to suppress the evidence seized during the search. The Court of Appeals affirmed the District Court’s decision to deny the motion. The Court stated that given the information and the knowledge that defendant was on parole for criminal sexual conduct with a minor, the tip was not stale at the time of the search. As the officers had a reasonable suspicion that defendant was in violation of his parole agreement by possessing child pornography, they were, thus, entitled to search his residence. Consequently, the officers arrived in the place where defendant's diskettes were plainly apparent without violating the Fourth Amendment. Because the parole agreement authorized the officers to search all of defendant's property, the officers had a lawful right of access to defendant's diskettes and evidence obtained in the search of defendant's diskettes was consistent with the original justification for the seizure. Thus, the search was permissible.

United States v. Triumph Capital Group, Inc., 211 F.R.D. 31 (D. Conn. 2002).
The court held that examining a file more than once does not constitute multiple searches under the Fourth Amendment.

State v. Washington, 2002 Wash. App. LEXIS 142 (Wash. Ct. App. 2002).
The defendant was convicted of possessing stolen property, a laptop computer, in the second degree. The defendant, in his appeal of the trial court’s denial of a pre-trial motion to suppress, argued that an officer's search of the allegedly stolen computer files was improper because it was conducted without a warrant. The Court of Appeals agreed. The Court found that the police had probable cause to arrest the defendant on suspicion of auto theft and that the search of his bag was proper as a search incident to arrest. They also concluded that the police had probable cause to seize the laptop computer based on the defendant's statement that he had purchased it from someone on the street for $ 50. However, probable cause to believe property was stolen did not itself justify an investigative search of that property, namely that of searching the computer files to determine the computer’s rightful owner. Instead, compliance with the warrant requirement was necessary to ensure that the police were justified in invading a person's privacy interest to search for evidence. Here, the police were not authorized to discount the defendant's claim of ownership and circumvent the warrant requirement simply because they had probable cause to believe the computer was stolen. Therefore, the trial court erred by failing to suppress the evidence gleaned from that improper search.

People v. Zichwic, 114 Cal. Rptr. 2d 733 (Cal. Ct. App. 2001).
The installation of an electronic tracking device on the undercarriage of a defendant's truck moving about on public thoroughfares, or through the public airspace, does not amount to a search within the meaning of the Fourth Amendment because it does not infringe upon a reasonable expectation of privacy. There can be no objectively reasonable expectation of privacy in what is regularly exposed to public view. While the undercarriage of a vehicle is not as readily seen as the other parts of its exterior, the undercarriage is part of the exterior that is ordinarily exposed to public view. It does not amount to a search to examine the undercarriage, to touch it, or to attach a tracking device, so long as a police officer does so from a place where the officer has a right to be.

United States v. Furrow, 229 F.3d 805 (9th Cir. 2000), overruled in part, United States v. Johnson, 256 F.3d 895 (9th Cir. 2001).
A warrantless "protective sweep" search is not justified if there is no evidence that officers had concern for their safety or the safety of others, and when the officers had the time and opportunity to call the local prosecutor to obtain a warrant. "Exigent circumstances" for a warrantless search of a house do not exist when officers have no "specific and articulable" facts showing that suspects still remain in the house and when an officer had sufficient time to contact the prosecutor.

State v. Schroeder, 613 N.W.2d 911 (Wis. Ct. App. 2000).
When searching computer files for certain items listed on a warrant, an agent is entitled to search all the files for those items. Other illegal materials found during such a search, such as child pornography, are not an illegal search and seizure per se, but rather may be valid under the plain view doctrine. However, upon discovery of these "new items" outside the scope of the original warrant, a new warrant should be obtained specifically covering these newly discovered items.

United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996).
Officers turned on a pager lawfully in their possession and retrieved its stored messages. They argued that exigent circumstances allowed the search of the pager’s contents; i.e., pagers have a limited memory, and the pager "would refuse to accept incoming messages if its storage capacity was full." However, the court held that since the warrant did not authorize officers to access the memory of the pager, the officer created the exigency through the unlawful act of turning on the pager. He, therefore, cannot "claim the benefit of the exigent circumstances exception." However, when an officer — within 20 minutes of the arrest and without a warrant — accessed the electronic memory of a pager retrieved from defendant’s bag, it was a valid search incident to arrest, and was not "remote in time or place from the arrest."

O’Connor v. Ortega, 480 U.S. 709 (1987).
Warrantless search of a government employee’s desk and file cabinets is permissible under the 4th Amendment if it is reasonable in scope and if it is justified at its inception by a non-investigatory, work-related need or a reasonable suspicion of work-related misconduct.

Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987).
A federal civil servant may have a cause of action for an illegal search and seizure if the constitutional violations claimed cannot be adequately addressed under the regulatory scheme that governs the relationship between the government and its employees. No statutory remedies exist for illegal searches and seizures carried out by the government against its employees. In addition to this, an employee may enjoy a reasonable expectation of privacy in areas given over to his exclusive use, unless he was on notice from his employer that searches of the type to which he was subjected might occur from time to time for work-related purposes.

United States v. Holmes, 537 F.2d 227 (5th Cir. 1976).
A government agent installed, without a warrant, a battery-operated beacon or "beeper" under the right rear wheel of the defendant's van in the early evening while it was parked on a lot outside a lounge. The beacon was used to monitor the movements of the van. The District Court suppressed the evidence obtained by the use of that beacon and the government sought review. The Court of Appeals affirmed the District Court's order suppressing the evidence as the "fruit" of an illegal search. The Court affirmed the District Court's findings that that the use of the beacon to monitor the movements of the van was a search subject to U.S. Const. amend. VI, that such search was illegal because of the failure to obtain a warrant for the beacon's installation, that an application for a warrant would have been rejected because no probable cause existed to justify its installation, and that no evidence at defendant's property would have been discovered, nor would the van with its contraband have been intercepted without the aid of the beacon.

United States v. Turk, 526 F.2d 654 (5th Cir. 1976).
Although the warrantless seizure of a tape may have been lawful, the officers’ subsequent playing of and listening to the tape of a private telephone conversation without a warrant violates the 4th Amendment and cannot be justified as an "inventory search."

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§ 1-19 Searches Involving 3rd Parties

United States v. Bach, 310 F.3d 1063 (8th Cir. 2002).
In a criminal prosecution for possession of child pornography, Yahoo! technicians retrieved, pursuant to a search warrant, all information from the Defendant’s email account. The lower court ruled that the seizure of the emails by Yahoo! was unlawful because police were not present when the Defendant’s email account was searched.
Reversing the lower court’s opinion, the appellate court held that Yahoo!’s search of the Defendant’s emails without a police officer present was reasonable under the Fourth Amendment and did not violate the Defendant's privacy rights.

State v. Guthrie, 627 N.W.2d 401 (S.D. 2001).
In a criminal prosecution for murder, a computer specialist conducted several forensic searches on a computer used by the Defendant, finding that the computer had been used to conduct numerous Internet searches on subjects related to the incidents surrounding the murder. In addition, the forensic analysis was able to reveal that a computer printed
suicide note, offered to exculpate the Defendant, was created several months after the victim’s death.

United States v. Schwimmer, 692 F. Supp. 119 (E.D.N.Y. 1988).
Pursuant to the statutory authority of 18 U.S.C. § 3105, a civilian computer expert may assist in executing a search warrant.

Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
The use of a search warrant for "mere evidence" on innocent third parties was permitted. [Resulted in the PPA.]

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§ 1-20 Seizures: Generally

United States v. Triumph Capital Group, Inc., 211 F.R.D. 31 (D. Conn. 2002).
The court ruled that copying a file does not necessarily constitute seizure of that file.

United States v. Tank, 200 F.3d 627 (9th Cir. 2000).
Seizure of a Zip disk from a backpack found in a defendant’s car was reasonable under the "search incident to arrest" exception to the 4th Amendment warrant requirement because the defendant had been lawfully placed under arrest and the search of his car was "roughly contemporaneous" with the arrest (within minutes of the arrest and immediately after the car had been moved less than a block away). Also, it made no difference that the disk was inside a backpack in plain view in the car since during a search incident to arrest officers are permitted to search the entire passenger compartment of a car, including the inside of containers.

United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996).
Evidence seized under a warrant for an Internet screen name not named in the warrant was improper. Accordingly, under the "fruit of the poisonous tree" doctrine, such evidence would be inadmissible. Moreover, the government could not excuse the "overbroad" search as fitting within the "good faith exception" to the exclusionary rule, because the ISP did not rely upon the search warrant to conduct the search. The ISP instead developed their own search program and retrieved the information pursuant to that program. In doing so, the ISP relied upon the list of e-mail names that they already had in their possession and on their conversations with the FBI prior to the search.

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§ 1-21 Seizures: Scope of Warrant

United States v. Scott-Emuakpor, 2000 U.S. Dist. LEXIS 3118 (W.D. Mich. 2000).
Where some items seized were beyond those specifically described in the warrant and were not covered by the plain view exception, if it has not been shown that the officers exhibited "flagrant disregard" for the terms of the warrant and thus transformed the otherwise valid search warrant into a general, prohibited one, suppression of all the evidence seized under the warrant is not required. The proper remedy is suppression of only those seized items beyond the scope of the warrant.

United States v. Sissler, 1991 U.S. Dist. LEXIS 16465 (W.D. Mich. 1991).
Many of the nearly five hundred computer disks and a personal computer seized by officers during execution of a warrant contained information whose seizure was not authorized by the search warrant. However, law enforcement officers are permitted to search any container found within the premises if there is reason to believe that the evidence sought pursuant to a warrant is in it. (United States v. Ross, 456 U.S. 798, 820–21 (1982).) Therefore, "the police were permitted to examine the computer's internal memory and the disks since there was every reason to believe that they contained records whose seizure was authorized by the warrant."

United States v. Tamura, 694 F.2d 591 (9th Cir. 1982).
Where wholesale seizure is motivated by considerations of practicality rather than by a desire to engage in indiscriminate "fishing," officers do not so abuse the authority of the warrant as to transform the otherwise valid warrant into a general one, thereby requiring all fruits of the search to be suppressed.

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