7.1 Admissibility - Warrants

Law enforcement officers obtained permission from the defendant to search his home for evidence relating to a sexual assault of one of his neighbors. During the search, an investigator looked at Turner's computer and identified child pornography. Turner was indicted for possessing child pornography but filed a suppression hearing to exclude the computer files on the ground that he had not consented to the search of his computer and it was not objectively reasonable for the detective to have concluded that evidence of the sexual assault - the stated object of the consent search - would be found in files with such labels as "young" or "young with breasts."

Regarding exigency, a warrantless search can be made for any emergency threatening life and limb. It is difficult to imagine a case in which a computer could be collected under exigent circumstances. Even in a homicide, a warrant is required for an in-depth search of the suspect's possessions.

There are four questions that investigators must ask themselves when searching and seizing digital evidence:

1. Does the Fourth Amendment and/or ECPA apply to the situation?

2. Have the Fourth Amendment and/or ECPA requirements been met?

3. How long can investigators remain at the scene?

4. What do investigators need to re-enter?

When asking answering these questions, remember that the ECPA prohibits anyone , not just the government, from unlawfully accessing or intercepting electronic communications, whereas the Fourth Amendment only applies to the government. Recall that the Fourth Amendment requires that a search warrant be secured before law enforcement officers can search a person's house, person, papers, and effects. To obtain a warrant, investigators must demonstrate probable cause and detail the place to be searched and the persons or things to be seized. More specifically , investigators have to convince a judge or magistrate that:

1. a crime has been committed;

2. evidence of crime is in existence;

3. the evidence is likely to exist at the place to be searched.

Even when investigators are authorized to search a computer, they must maintain focus on the crime under investigation. For instance, in United States v. Carey (case ref), the investigator found child pornography on a machine while searching for evidence of drug related activity but the images were inadmissible because they were outside of the scope of the warrant. The proper action when evidence of another crime is discovered is to obtain another search warrant for that crime.

CASE EXAMPLE (UNITED STATES v. GRAY 1999):

During an investigation into Montgomery Gray's alleged unauthorized access to National Library of Medicine computer systems, the FBI obtained a warrant to seize four computers from Gray's home and look for information downloaded from the library. While examining Gray's computers, a digital evidence examiner found pornographic images in directories named "teen" and "tiny teen," halted the search and obtained a second warrant to search for pornography.

CASE EXAMPLE (WISCONSIN v. SCHROEDER):

While investigating an online harassment complaint made against Keith Schroeder, a digital evidence examiner found evidence relating to the harassment complaint on his computer and noticed some pornographic pictures of children. A second warrant was obtained, giving the digital evidence examiner authority to look for child pornography on Schroeder's computer. Schroeder was charged with 19 counts of possession of child pornography and convicted on 18 counts after a jury trial. For the harassment , Schroeder was tried in a separate proceeding for unlawful use of a computer and disorderly conduct.