Saturday, July 18, 2009

Search and Seizure and Sarah Palin

Case Summaries and Commentary by Federal Defenders of the Sixth Circuit
Full article from the Sixth Circuit Blog
Fourth Amendment - Search and Seizure
Computer Searches, The Fourth Amendment, and Sarah Palin

July 17, 2009 EXCERPTS:
The challenge to the breadth of the government's search of the defendant's computer presents an issue that has yet to be adequately addressed by most courts, and could prove to be fruitful ground for defense practitioners seeking to suppress evidence obtained from a defendant's computer.

Hoffman explains: "Because Fourth Amendment jurisprudence has evolved around traditional notions of physical property and common law trespass, its application to new technologies has been an ongoing challenge for the courts. It is well-settled that people generally have a reasonable expectation of privacy in their personal computers, but forensic examinations--a key component of many police investigations--raise some difficult questions."

Fourth Amendment, regardless of whether the courts ultimately rely on adapting old rules to solve the problems, or adopting new rules to reflect the technologies." Their article identifies a myriad of issues relating to computer searches and proposes that adapting old rules will be insufficient to address the problems presented by broad computer searches. They contend that the promulgation of new rules will be necessary to prevent the circumvention of the 4th Amendment's privacy protections in persons effects found on hard drives. In addressing the Georgia courts' view of a computer as simply another briefcase, they state, "[t]his simplistic view fails to recognize the scope of the searches that are being undertaken; fails to consider the amount of information found in computers that has nothing to do with legitimate law enforcement concerns and results in the violation of the particularity requirement of the Fourth Amendment and the requirement that searches and seizures be reasonable."

I believe that the Kernell case might present an excellent situation for the Sixth Circuit to address the parameters of the 4th Amendment in the digital age, and the district court's actions in this case bears watching. While Garland and Williams identify other issues presented by computer searches, I believe the particularity requirement of the 4th Amendment is going to be the key to evaluating search warrants seeking to seize computers from a defendant. When you seize most people's computers these days, you aren't just seizing their storage device for evidence of crimes or illicit contraband, but also, their checkbooks, their entertainment systems, their writings, "their papers and effects" if you will. Given the myriad of uses computers are involved in, are warrants that describe the item to be seized simply as a "computer" enough to fulfill the particularity requirement, or will agents need to identify the specific type of file that they are searching for in the computer? If agents go in searching for one thing, but do a little nosing around, and find evidence of another crime, is that 'plain-view'? These are just two of many questions that have yet to be answered regarding computer searches.

Georgia Bar Journal PDF
"The Fourth Amendment and Computers: Are computers just another container or are new rules required to reflect new technologies,"

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