Outline of issues involving search and seizure—Pursuant to warrant

Outline of issues involving search and seizure—Pursuant to warrant

In determining the appropriateness of a search in a computer case, there are a number of areas to explore.

For a search pursuant to a warrant, it must be determined if the search warrant defined the area to be searched with specificity,FN37 and if the warrant adequately defined the computer environment such that the officers carrying out the search could not look through every piece of paper, magnetic tape, diskette, and piece of documentation prior to finding those items which they were looking for. It must also be determined if there was a sufficient basis in fact to believe that the items sought would produce evidence of a crime.FN38

If the warrant calls for a search that would have the effect of shutting down a business because of its reliance on the computers, it must be determined if the search was permissible.FN39 Often law enforcement agents cannot recognize, retrieve or interpret evidence that is in computerized form.FN40 Consequently, they may bring an expert with them to assist in effectuating the search. Cases have suggested that such accompaniment is illegitimate,FN41 though these cases do not constitute the rule in any one jurisdiction.FN42 It must also be determined if the expert who accompanies the search warrant was authorized to interfere with the operation of the computer in any manner.

The following questions can be raised:FN43

• Question: Did the search warrant affiant know, or should the affiant have known, that the affidavit contained false information?

• Question: Was the magistrate neutral and detached?

• Question: Was the amount of time spent considering the warrant indicative of detached consideration?

• Question: Was there sufficient probable cause under the totality of the circumstances?FN44

• Question: Was the officer sufficiently well trained in search and seizure to make a reasonable determination of whether to rely on the defective search warrant?

• Question: Are there enough indicia of probable cause to render belief in it unreasonable by the magistrate and the officer?

• Question: Is the warrant so lacking in particularity concerning what was to be searched or seized that it was patently invalid.

Cumulative Supplement

Cases:

Search for specific file extensions: Search of computer for images, under file extensions such as "jpg," "mpg," "bmp," and "gif," was not impermissible general search of computer, under warrant that authorized search of "any computer equipment" that could create or display computer data and encompassed "any and all computer software," where there was no evidence of exploratory rummaging through files or inadvertent discoveries. U.S.C.A. Const.Amend. 4. U.S. v. Grimmett, 439 F.3d 1263 (10th Cir. 2006); West's Key Number Digest, Obscenity 7.6.

Scope of warrant: Search warrant's authorization of search and seizure of computer and all of its related disks, software and storage devices was sufficiently particular and narrow; search and seizure of the computer and its related storage equipment was only practical way to obtain child pornography images and documents referenced in affidavit, and description of items to be searched was limited to items relating to child pornography. U.S.C.A. Const.Amend. 4. U.S. v. Albert, 195 F. Supp. 2d 267 (D. Mass. 2002); West's Key Number Digest, Obscenity 7.6.