SUPPRESSING CRIMINAL EVIDENCE8-1 §8:01
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
years 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
precedents deal with static and immovable evidence, which differs qualitatively from electronic technology. This
becomes 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
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, 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?
SEARCH AND SEIZURE OF ELECTRONIC DEVICES 8-2§8:02
• 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?
• Did the administrator only search at the request of law enforcement or were there
independent, non-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
Remote searches, conducted with such software, by law enforcement are permissible. United States v. Ganoe, 538
F.3d 1117 (9th Cir. 2008); United States v. Stults, 575 F.3d 834 (8th Cir. 2009). However, the mere installation of
State v. Bailey, 989 A.2d 716 (Me.
2010).
§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).
There are differing opinions on what constitutes abandonment. When a tenant failed to pay rent and was told to 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
These individuals can be required to permit searches of their computers by their supervising agent; however, it
is unlawful to require registered sex offenders who have completed their sentences to submit to law enforcement
searches 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
SUPPRESSING CRIMINAL EVIDENCE8-3 §8:09
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
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 banc that an extensive forensic search
requires reasonable suspicion of criminal activity. United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013); another
court 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). 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 (Bradley) Manning.)
§8:07 Private Party Searches
of a crime and contacts police, there is no unlawful search. United States v. Grimes, 244 F.3d 375 (5th Cir. 2001).
2. Consent in Warrantless Computer Searches
§8:08 Scope of Consent
to. A person who consents to police viewing his computer usually does not realize what will occur in a full-scale
forensic search of the device. Courts have upheld consent searches when agents told the subject that they had forensic
United States v. Lukin, 560 F.3d 741 (8th Cir. 2009)) and when the
subject consented to a “complete search.” United States v. Brooks, 427 F.3d 1246 (10th Cir. 2005). Broad consent
to search one’s home has also been construed as including consent to a full-scale computer search. United States v.
Al-Marri, 230 F. Supp.2d 535 (S.D. N.Y. 2002).
consent by searching much more broadly, some courts have suppressed the search results. See State v. Bailey, 989
A.2d 716 (Me. 2010); State v. Prinzing, 907 N.E.2d 87 (Ill. Ct. App. 2009); United States v. Stierhoff, 477 F. Supp.2d
423 (D. R.I. 2007); United States v. Richardson, 583 F. Supp.2d 694 (W.D. Pa. 2008). The same principle has been
examining a computer. United States v. Turner, 169 F.3d 84 (1st Cir. 1999).
Practice Point: Read the reports and forms.
Interview your client regarding the scope of his consent. Find out what police told him
they were looking for and exactly what he agreed to. In many of the above cases, the police
to search a home or computer because they were investigating whether the client was a
crime victim. If the police reports indicate the initial contact was made with your client for
something other than what was found on his computer, the search is particularly ripe for a
challenge. Be sure to examine all written consent forms to see what they specify.
§8:09 Who May Consent
The courts follow the apparent authority paradigm for determining who can consent to a computer search. When
Trulock
v. Freeh, 275 F.3d 391 (4th Cir. 2001), the court held a co-user had no authority to consent to opening the other
United States v. Buckner, 473 F.3d 551 (4th Cir. 2007).
