Motion to suppress illegally obtained evidence; checklist

Motion to suppress illegally obtained evidence; checklist

Challenging the legality of the evidence against the defendant is a major responsibility in most criminal defenses. In a computer crime defense, it is no different. If it can be established that evidence was obtained as the result of an illegal search or seizure, the court will suppress the evidence, as well as its fruits, and reduce the likelihood of a successful prosecution. A major exception is the "objective good faith" reliance on a search warrant signed by a neutral and detached magistrate.FN32 To contest the legality of a search, most jurisdictions allow either for a motion prior to trial,FN33 or a de novo hearing to consider the issue.FN34

A motion is usually accompanied by a legal brief and occasionally by declarations or affidavits. It is desirable to examine the client specifically with a mind to contesting the search and seizure of any evidence in his or her case. The following questions are a good beginning to that interview:

• When were the items seized? At what time of day?
• By whom were the items seized?
• Where were the items located at time of seizure?
• To the client's knowledge, was the seizure pursuant to a search warrant?
• Was any warrant presented to the client?
• Was a warrant presented to the owner of a computer?
• Was an arrest made?
• What were the circumstances of the arrest?
• What was the charge at the time of arrest? Felony or misdemeanor?
• Name all the people who were present in addition to those who seized the items in question.
• Was any electronic equipment used in gathering evidence against defendant?
• If so, what were the circumstances of its installation?
• Was consent given to any search?
• Was consent given to any search by the defendant?
• Was consent given to any search by the victim?
• If any conversations were recorded, did one party consent to the recording?
• Did the client have any expectation of privacy concerning the materials seized? What was the basis of that expectation?
• Were there any manifestations of that expectation? (For example, a label on a floppy disc saying "PRIVATE DO NOT USE WITHOUT PERMISSION")
• Did the client have any expectation of privacy in any conversations that were recorded?
• What were the seized items?
• At the time of the seizure, was there any danger that the items might be removed by the client or anyone else?
• Did the police officers announce themselves prior to entry?
• To the client's knowledge, did the officers exceed their authorized scope of the search?
• How did the police learn of the location of the items seized? Was there an informer?

With this information, counsel should be able to determine intelligently, after researching the law in this area, if there was an unlawful search and seizure as needed to support a motion to suppress. If the motion is denied, it may be raised later in the trial proceedings or on appeal. Alternatively, counsel may seek to have the issue reviewed immediately by a higher court, by the use of a writ of mandamus or prohibition.FN35 However, seizure of computer files, without first determining which files fall within the scope of the warrant, does not automatically require blanket suppression of the materials seized. This is true where the law enforcement agents act in good faith and with the intent to carry out the search in an appropriate and efficient manner, and the government indicates to the defendant that no evidence from files outside the scope of the warrant will be introduced.FN36

Cumulative Supplement

Cases:

Hacker's search: Anonymous computer hacker who emailed information to police concerning defendant's sexual exploitation of children and possession of child pornography was not agent of government, and thus hacker's nonconsensual search of defendant's computer files did not implicate Fourth Amendment, and evidence obtained in subsequent search of computer by police pursuant to warrant obtained on basis of information received from hacker was not subject to suppression; even if police tacitly encouraged hacker to conduct further nonconsensual searches of defendant's computer after hacker first contacted police, searchwarrant affidavit contained only information that hacker had acquired before he ever contacted police. U.S.C.A. Const. Amend. 4. U.S. v. Steiger, 318 F.3d 1039 (11th Cir. 2003), cert. denied, 123 S. Ct. 2120, 155 L. Ed. 2d 1095 (U.S. 2003); West's Key Number Digest, Obscenity 7.6.

Unidentified Turkish Internet user was agent of government, precluding use as evidence in child pornography trial of material obtained by user after user obtained unauthorized access to computer; user had provided information leading to conviction of child pornographer in earlier case, and told authorities of desire to aid law enforcement efforts to catch pornographers, and government had praised user's contribution and encouraged user to continue activities and report further discoveries to them, with knowledge that user was illegally "hacking" into computers. U.S.C.A. Const. Amend. 4. U.S. v. Jarrett, 229 F. Supp. 2d 503 (E.D. Va. 2002), judgment rev'd, 338 F.3d 339, 61 Fed. R. Evid. Serv. 1530 (4th Cir. 2003); West's Key Number Digest, Searches and Seizures 33.

Files in "plain view": Image files containing child pornography, closed at time search of computer pursuant to warrant authorizing search of computer for records or information relating to marijuana commenced, were in "plain view" for purposes of plain view doctrine; officer was executing what he believed to be valid search warrant which specifically authorized search of contents of defendant's computer, and was searching in place where computer documents for which search was authorized were likely to be located, and file names were cryptic and did not indicate likely contents of files. U.S.C.A. Const. Amend. 4; Indiana Constitution Art 1, § 11. Frasier v. State, 794 N.E.2d 449 (Ind. Ct. App. 2003); West's Key Number Digest, Obscenity 7.6.