The Fourth Amendment and Computer Searches

  The Fourth Amendment and Computer Searches Cmputers are no longer just tools of the trade for scientists or mathematicians, they are now found in nearly every household within the United States. In a recent study conducted by the United States Census Bureau in 2013, 83.8 percent of the households in the United States reported owning a computer. Of that percentage, 78.5 reported having a desktop or laptop in their home and 63.6 percent reported having a handheld computer. As technology is on the upswing and more people are using computers, it gives way to a rise in computer related crime. With an uprising of computer crime it is becoming more imperative that law enforcement officers understand how to obtain evidence that is stored on computers and how the Fourth Amendment protections apply to searching computers. The entire premise of the Fourth Amendment is to prevent law enforcement agents from searching and seizing evidence without having a warrant.

The Fourth Amendment is fairly clear as to what is required when it pertains to searches and seizures. According to the manual on search and seizure published by The Office of Legal Education, the Fourth Amendment reads as “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The United States Supreme Court has gone in further detail as defining search as “when an expectation of privacy that society is prepared to consider reasonable is infringed.” In hindsight, is an individual’s reasonable expectation of privacy is not violated, than a search did not occur. Instructions for searches and seizures may seem clearly stated in the Fourth Amendment; however, as it pertains specifically to computers, it gets much more difficult to interpret. When it comes to specifically searching a computer, law enforcement agents consider two key points in determining whether they need a warrant or not. First they must understand if the search will violate the reasonable expectation to privacy that is given in the Fourth Amendment.

Second they must consider if the search will fall into an exception to warrant criteria; therefore making the search permissible. When the Founding Fathers established the requirements for the Fourth Amendment, there was no possible way for them to foresee the technological advancement.

While the Fourth Amendment still applies to the searching of computers, it has become very specific and very tricky for law enforcement officers. When law enforcement officers deal with computer searches, one of the biggest issues they face is the reasonable expectation of privacy clause in the Fourth Amendment. To establish what expectation of privacy equates to, courts have generally established that a computer is to be treated the same way a closed container is to be treated. Briefcases and file cabinets are examples of closed containers that also retain an expectation of privacy. Since computers are similar in nature, they are to be treated the same way. If it is believed that an individual has a reasonable expectation of privacy involving the contents on their computers, flash drives, or even cell phones, than it is required for law enforcement officials to get a warrant before the contents can be searched.

Since the reasonable expectation of privacy applies to computers and other electronic devices, the information or data located on those devices also falls under the expectation of privacy for the owner. As mentioned above, there are exceptions to warrant requirements when it pertains to the searching of computers. When consent to search is given, a law enforcement officer may conduct the search. This allows law enforcement officers to conduct a search without having to establish probable cause or secure a search warrant. Consent to search must come from an individual who has the authority to consent to a search. Once consent is given, law enforcement officers have to be careful as to not overstep the scope of consent that was given for that particular search. On occasion, law enforcement officers may rely on exigent circumstances to conduct a search on a computer.

Certain criteria must be met in order for a warrantless search to be conducted. Generally there are four circumstances in which officers may conduct a warrantless search; the evidence is in immediate danger of it being destructed, the police or public are in danger due to an immediate threat, law enforcement officers are in a hot pursuit of an individual suspected in a crime, or the suspect is most likely to run before the search warrant can be granted. Pertaining to computers, evidence being in immediate danger of being destructed, is the most common circumstances law enforcement officers will likely face. With today’s technology there are multiple ways in which computer data can be easily put out of reach of law enforcement officers; making the preservation of data that much more important.

With hopes of using a warrantless search, law enforcement officers must either get consent to search, or have exigent circumstances. Without these, the search is deemed unconstitutional as it violates the protections in the Fourth Amendment. Computers can serve several different roles within the definitions of criminal offenses. They can serve as contraband, evidence of a crime, or an instrument in crime. Whichever role the computer serves is important, since each one can be searched in different ways.

The actual search of a hard drive from a suspected computer can reveal several types of evidence. Once this information from the search has been extracted, it can provided investigators with crucial answers to some of the common questions of who, what, when and how during their investigation.

Search warrants for computers are the preferred method to engage in a search. In order for investigators to get a search warrant for a computer, they must first establish the probable cause necessary to search a computer and describe in particular what data or information is to be taken from the computer. Probable cause in reference to computers is belief that the computer is either contraband or contains contraband, there is evidence of a crime, it was used as an instrument to commit a crime, or fruits of a crime. When probable cause has been established, and a warrant has been issued, the warrant takes precedence over an individual’s expectation to privacy. In most cases it is forensic examination and analysis will take too long to be conducted on site, therefore, items described in the search warrant may be seized. The actual search of the computer occurs in two stages; imaging and analysis.

When a computer hard drive is imaged, it is copied identically using software that allows this process without contaminating any data. The analysis stage is when the forensic analyst goes through the computer records that are detailed in the search warrant. The Fourth Amendment doesn’t limit what techniques that forensic analyst may use when conducting the search on the hard drive. It also doesn’t limit the type of forensic software may be used while conducting the examination. Since the modern day computer may be used in an array of tasks, a computer hard drive could have the possibility of containing evidence of more than one type of crime. Warrants for computer searches are very specific; they often times stipulate what type of evidence can be collected pertaining to a certain crime.

When analysts discover other evidence pertaining to a separate crime, they must stop their search and gain another search warrant to examine the evidence they just discovered. Collection of information for use as evidence that occur outside of intended scoped of the warrant will likely become inadmissible as evidence. Safe practice for analysts is gain immediately gain another search warrant when information uncovered leads to other suspected crimes. In addition to the limitations imposed by the Fourth Amendment, there are also three other limitations enacted by Congress that pertain specifically to the search of computers. The first limitation is the Privacy Protection Act which protects journalists and authors from search and seizure of materials that are in involved in First Amendment activities.

The second limitation covers privileged documents such as medical records, psychologist notes, or attorney-client information. Lastly, limitations are also applied to the collection of information from disinterested third parties. Overall, as long as law enforcement officers follow proper procedure, they can search any individual if they have probable cause that the search will disclose contraband or evidence that a crime was committed. As the American way of life is now centric around electronic devices and computers it has given way to which individuals commit crime. Criminal evidence such as drug trafficking ledgers, child pornography, incriminating photos and information can all be found within a computer. Computers are to be treated as containers and are generally given the reasonable expectation of privacy guaranteed to them in the Fourth Amendment.

Computers are being commonly seized by law enforcement officers to conduct searches for evidence during criminal investigations. Information collected during these searches tends to be a critical step in evidence collection, and it cannot be taken lightly. It is imperative for law enforcement officers and prosecutors to fully understand and comprehend how computers must be searched while maintaining the integrity of the Fourth Amendment.

Without law enforcement and prosecutors following proper protocol, essential evidence found during a criminal investigation may not be allowed into the courts. Thus, allowing criminals to walk away uncharged. References File, T., & Ryan, C. (2014, November). Computer and Internet Use in the United States: 2013. American Community Survey Reports. Retrieved from https://www.census.gov/content/dam/Census/library/publications/2014/acs/acs-28.pdf Goldfoot, J. (2011). The Physical Computer and the Fourth Amendment.

Berkeley Journal of Crominal Law, 16(1), 112-167. Retrieved from https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1047&context=bjcl The Office of Legal Education. (2009). Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (pp. 1-114). N.p.: Office of Legal Education Executive Office for United States Attorneys. Retrieved from https://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf Ziff, D. J. (2005, April). Fourth Amendment Limitations on the Execution of Computer Searches Conducted Pursuant to a Warrant. Columbia Law Review, 105(3), 841- 872. Retrieved from https://www.jstor.org/stable/4099480

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