Searching and Seizing Computers and Obtaining Electronic Evidence Manual

Searching & Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations

Search and Seizure Preface and Acknowledgments

Search and Seizure Introduction

Searching and Seizing Computers Without a Warrant

The Fourth Amendment limits the ability of government agents to search for and seize evidence without a warrant. This chapter explains the constitutional limits of warrantless searches and seizures in cases involving computers.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

According to the Supreme Court, a "'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property,"United States v. Jacobsen, 466 U.S. 109, 113 (1984), and the Court has also characterized the interception of intangible communications as a seizure. See Berger v. New York, 388 U.S. 41, 59-60 (1967). Furthermore, the Court has held that a "'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." Jacobsen,. If the government's conduct does not violate a person's "reasonable expectation of privacy," then formally it does not constitute a Fourth Amendment "search" and no warrant is required. See Illinois v. Andreas, 463 U.S. 765, 771 (1983). In addition, a warrantless search that violates a person's reasonable expectation of privacy will nonetheless be constitutional if it falls within an established exception to the warrant requirement. SeeIllinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). Accordingly, investigators must consider two issues when asking whether a government search of a computer requires a warrant. First, does the search violate a reasonable expectation of privacy? And if so, is the search nonetheless permissible because it falls within an exception to the warrant requirement?

Searching and Seizing Computers With a Warrant

This Chapter discusses the legal and practical rules governing the use of warrants to search for and seize evidence stored in computers and electronic media. Section B discusses the strategic considerations any investigator or attorney should bear in mind before applying to the court for a warrant. Section C discusses the issues that arise in drafting a computer search warrant and affidavit. Section D addresses forensic analysis of the media. Section E discusses challenges to the search process. Finally, Section F discusses the limited circumstances in which statutes or other rules prohibit the government from using search warrants to obtain computers or electronic media. A sample computer search warrant appears in Appendix F.

Evidence

Search and Seizure Appendices

Search and Seizure Table of Cases

Search and Seizure Index