Outline of issues involving search and seizure—Not pursuant to warrant
Outline of issues involving search and seizure—Not pursuant to warrant
Where a search is without a warrant, the traditional argument of lack of probable cause will be the thrust of the defense. Where the defendant and the victim have rights in a computer system, issues as to the appropriateness of consent may also be raised.FN45
The expectation of privacy by an employee in the computer system used by his or her employer is a major issue regardless of whether the search was pursuant to a warrant or not. The argument in such cases is that the information seized from company files within the computers and used against the defendant violated the defendant's right to privacy as to that information.FN46
Cumulative Supplement
Cases:
Resident's consent to search of his apartment for signs of intruder who had broken into neighbor's apartment did not extend to search of resident's computer files, notwithstanding suggestive image on resident's computer screen; rather, search was limited to places where an intruder hastily might have disposed of any physical evidence of assault immediately after it occurred. U.S.C.A. Const.Amend. 4. U.S. v. Turner, 169 F.3d 84 (1st Cir. 1999); West's Key Number Digest, Searches and Seizures 186.
Scope of consent: Manual search of defendant's computer for child pornography images did not exceed objectively reasonable interpretation of his written consent to in-home search, notwithstanding that officer told him that specific software-driven search would be used to call up images on hard drive, whereas manual search using computer search functions was ultimately used when software search disk failed, where consent form provided for "complete search" of computer for pornographic images and what officer did manually was functional equivalent of employing pre-search disk that he orally described for defendant, such that manual search was no more invasive than automated one would have been. U.S.C.A. Const.Amend. 4. U.S. v. Brooks, 427 F.3d 1246 (10th Cir. 2005); West's Key Number Digest, Searches and Seizures 186.
Seizure of images of child pornography, beyond the first, from defendant's computer hard drive was not authorized by the warrant, and since the images were in closed files, they were not in plain view, but, instead were seized pursuant to a general, warrantless search, where warrant permitted only the search of the computer files for "names, telephone numbers, ledgers, receipts, addresses, and other documentary evidence pertaining to the sale and distribution of controlled substances," it was the contents of the files and not the files themselves which were seized, and it was evident from police officer's testimony that each time he opened a "JPG" file after the first, he expected to find child pornography and not material related to drugs. U.S.C.A. Const.Amend. 4. U.S. v. Carey, 172 F.3d 1268 (10th Cir. 1999); West's Key Number Digest, Obscenity 7.6.
Consent defendant gave to the search of his apartment did not carry over to the contents of his computer files, where the arresting officer sought permission to search only the "premises and property located at" a specified address; seizure of the computer was permitted by the consent to remove property that shall be essential to the proof of any crime, but the agreement did not permit the officer to open the files contained in the computer. U.S.C.A. Const.Amend. 4. U.S. v. Carey, 172 F.3d 1268 (10th Cir. 1999); West's Key Number Digest, Searches and Seizures 186.
Child molestation defendant's wife had authority to consent to seizure of their computer during warrantless search their home, despite defendant's claim that his wife lacked authority to consent because computer contained records of his internet browsing, which were record of his personal thoughts and associations; at time of search, defendant and his wife were married and resided together in house, wife purchased computer, and it was available to entire family. U.S.C.A. Const.Amend. 4; Ga. Const. Art. 1, § 1, Par. 13. Walsh v. State, 236 Ga. App. 558, 512 S.E.2d 408 (1999); West's Key Number Digest, Searches and Seizures 178.