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.
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’."
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.
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
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.
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.
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."
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.
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.
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.
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").
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.
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.
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.
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.
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
