8-1
CHAPTER 8
Search and Seizure
of Electronic Devices
The rapid development of electronic technology has given rise to a new body of law regarding privacy rights in
electronic information. The technological capabilities of the electronic devices that are a part of our everyday lives are
ago. This has created great privacy concerns for individuals and a boon for law enforcement agents seeking evidence
for criminal prosecutions.
Nothing is changing more rapidly in our society than what technology can achieve. The courts are dealing daily
with new technologies and deciding how old principles of law should be applied to them. Many of the available prec-
even truer as more and more data is stored in a cloud.
This chapter will discuss four types of electronic technology: computers (including Internet usage and email); cell
phones; GPS monitoring; and electronic surveillance.
Practice Point: Raise suppression issues in this rapidly developing area of law
The issues involving searches of computerized devices, cell phone tracking and social media are just
now reaching the United States Supreme Court. Many of the court opinions cited in this chapter are from
trial level and intermediary appellate courts. Even if your jurisdiction’s highest courts have ruled adversely
to you, raise suppression issues because the United States Supreme Court may well eventually overturn your
lower court’s rulings.
I. COMPUTERS
A. Warrantless Searches and Seizures
1. When Does a Reasonable Expectation of Privacy Exist?
Normally a person has a reasonable expectation of privacy in the contents of his or her personal computer. United
States v. Lifshitz, 369 F.3d 173 (2nd Cir. 2004). However, the courts have carved out exceptions to this general rule and
determined there is no reasonable expectation of privacy in one’s computer in the following situations:
§8:01 In the Employment Context
Use of employer’s computer
When a computer belongs to an employer, and there is a company policy that clearly informs employees that their
communications and the contents of the computer are subject to the company’s monitoring or searches, there is no
privacy right. United States v. Simons, 206 F.3d 392 (4th Cir. 2000); United States v. Angevine, 281 F.3d 1130 (10th
Cir. 2002). If, however, an employer or school does not have a clearly delineated policy, which informs users that their
computer use is monitored, courts have found a reasonable expectation of privacy. United States v. Heckenkamp, 482
F.3d 1142 (9th Cir. 2007). There also may also be a reasonable expectation of privacy when the computer is located in
United States v. Ziegler, 474 F.3d 1184 (9th Cir. 2007).
Employee’s use of non-password-protected personal computer at work
When one’s personal computer is brought to work, connected to the employer’s network and left open to anyone’s
view, there is no reasonable expectation of privacy. United States v. Barrows, 481 F.3d 1246 (10th Cir. 2007). Even so,
§8:02 SUPPRESSING CRIMINAL EVIDENCE 8-2
connecting one’s personal computer to an employer’s network does not automatically deprive the user of a reasonable
expectation of privacy. Leventhal v. Knapek, 266 F.3d 64 (2nd Cir. 2001).
Practice Point: Gathering information for a motion to suppress in the employment context
Determine the following before bringing a motion to suppress a warrantless computer search in an
employment context:
• Is your client an employee or independent contractor?
• Who did the computer belong to?
• Did the company provide computers or ask employees to bring in their own?
• Did the company have a written policy on use of its computers?
• How was that policy distributed or posted?
• Was the policy ever discussed with the client?
• Was the client’s computer password-protected and if so, who had access to the password?
• Was there a company policy regarding whether anyone but your client could access his computer?
• Was your client allowed to install software on the computer?
• What was the company’s internet use policy?
• If the client was using their own computer, was it connected to the company network?
• If the computer was searched by a company administrator, why was this done?
law enforcement reasons for the administrator to conduct the search?
• Did your client encrypt data to keep it private?
§8:02 Use of File-Sharing Software
A substantial amount of law enforcement investigation into child pornography occurs when users are accessing
United States v. Ganoe,
538 F.3d 1117 (9th Cir. 2008); United States v. Stults, 575 F.3d 834 (8th Cir. 2009).
automated software programs reliable to identify a user’s IP address. The court in United States v. Dunning, 857 F.3d
342 (6th Cir. 2017), denied this challenge, presuming the software reliable in the absence of any evidence to the con-
trary. The court held that the evidence showed the detective was trained to use the software; had successfully done so
Franks. v. Delaware, 438 U.S. 154
Id. at 347. For
United States v. Thomas, 788 F.3d
345 (2nd Cir. 2015), cert. den. 136 S. Ct. 848 (2016). The court in Thomas held that the use of the automated programs
does not violate the Fourth Amendment because it “merely automates the aggregation of public information—a task
Id. at 352. State courts considering the issue have
reached similar conclusions. See, for example, Frazier v. State, 180 So. 3d 106, 1069 (Fla. App. 2015), where the court
listed a number of state courts that reached the same result.
Practice Pointer:
-
tigate whether your client actually shared images with such software. Suppression was granted in United
States v. Ahrndt, 2013 U.S. Dist. LEXIS 7223 (D. Ore 2013), because the evidence showed the contents of
the defendant’s computer became visible to others without his knowledge when he attached it to an unsecured
You need to retain an expert to review what happened with the government’s search to uncover any evi-
expert you use and the weaknesses he or she may have by searching their name in a legal software program
such as Lexis, Westlaw or Casetext, so you don’t run across any surprises at the hearing.
8-3 SEARCH AND SEIZURE OF ELECTRONIC DEVICES §8:06
§8:03 Stolen and Abandoned Property
The law is identical to any other stolen property, such as a car or purse. See Hicks v. State, 929 So.2d 13 (Fla. Ct.
App. 2006); United States v. Caymen, 404 F.3d 1196 (9th Cir. 2005).
move out, but returned to retrieve his belongings, a computer given by the landlord to police was not abandoned. United
States v. Crist, 627 F. Supp.2d 575 (M.D. Pa. 2008). On the other hand, when a defendant left his computer hard drive
at his apartment after stealing his brother’s car and leaving the state, the hard drive was deemed abandoned. State v.
Gould, 963 N.E.2d 136 (Ohio 2012).
§8:04 Probationers and Parolees
of their computers. Doe v. Prosecutor, 566 F. Supp. 2d 862 (S.D. Ind. 2008).
§8:05 “Special Needs” Exceptions
When a computer administrator conducts a search in furtherance of a company’s computer systems’ security,
his actions are permissible under the special needs exception, even when the administrator became aware of security
breaches through law enforcement agents. United States v. Heckenkamp, 482 F.3d 1142, 1147-58 (9th Cir. 2007).
§8:06 Border Searches
2015. See
http://bigstory.ap.org/article/6851e00bafad45ee9c312a3ea2e4fb2c/electronic-media- searches-border-crossings-raise-worry.
Border searches are divided into two types: routine searches, which are permissible even when suspicionless; and
U.S. v. Flores-Montano,
considered routine. United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008). Courts disagree, however, on whether an
extended seizure and forensic search of a computer is permissible without reasonable suspicion. The Ninth Circuit held
en bancUnited States v. Cotterman,
709 F.3d 952 (9th Cir. 2013); two other courts reached the same result when smart phones and a USB drive were seized
in a border search. United States v. Saboonchi, 990 F. Supp. 2d 536 (D. Md. 2014); United States v. Kim, 103 F. Supp.
3d 32 (D. D.C. 2015). On the other hand, in House v. Napolitano, 2012 U.S. Dist. LEXIS 42297 (D. Mass.), the court
permitted a warrantless search of a computer and other electronic devices, and the extended seizure of the laptop, for
no reason other than what appeared to be the government’s dislike of House’s political views. (House was involved
in a support network for Private Chelsea Manning.) A similar result was reached in United States v. Feiten, 2016 U.S.
Dist. LEXIS 30331 (E.D. MI 2016), where the court held that an extensive forensic search of an electronic device is a
Practice Pointer: To protect data, don’t take it across the border.
When clients ask you how to keep their data private when crossing the border, the answer is that anything
they have may end up being subject to search or they may be seriously inconvenienced because their electronic
not take it over the border. Many businesses and individuals are leaving their data at home and using temporary
devices such as prepaid phones or Chromebooks. While storing data in the cloud may be safer, be aware that
provide this information are unclear. Encryption may protect sensitive data. Devices should only be accessed
by a password; it is much easier for law enforcement to force a person to open up a phone or device by using
