Computer Search by Police Use Encase

Computer search warrant and searches are executed every day and courts hear motions to suppress evidence in California to New York each day. Darren Chaker, understands the search computer data cannot physically compare with the search of a human body it certainly does not compare to that of a routine search of one’s vehicle. The Fourth Amendment covers privacy expectations and the below illustrates common issues with computer searches and seizures by police.

The modern day computer is symbiotic extension of our personal and professional lives and often contains a lifetime of personal and professional thoughts ideas and records. It is the value of privacy that we place on the contents of our personal computers that we seek to protect. It is these interests that are so comparable in level to a strip search that they necessarily require the same protections. A Tenth Circuit case does an excellent job of expressing this notion and acknowledging the important role computers and their data play in our lives, “Given the pervasiveness of computers in American homes, this court must reach some, at least tentative, conclusion about the category into which personal computers fall. A personal computer is often a repository for private information the computer’s owner does not intend to share with others. [F]or most people, their computers are their most private spaces. People commonly talk about the bedroom as a very private space, yet when they have parties, all the guests–including perfect strangers-are invited to toss their coats on the bed. But if one of those guests is caught exploring the host’s computer, that will be his last invitation.” United States v. Gourde, 440 F3.d 1065, 1077 (9th Cir.2006) (en banc) (Kleinfeld, J., dissenting). See generally Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L.Rev. 531, 569 (2005) (“[C]omputers are playing an ever greater role in daily life and are recording a growing proportion of it…. [T]hey are postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more…. Each new software application means another aspect of our lives monitored and recorded by our computers.”).

Police use EnCase, Darren Chaker

Cyber crime, online piracy and internet web hacking concept: macro view of metal handcuffs on laptop notebook keyboard with selective focus effect

Because intimate information is commonly stored on computers, it seems natural that computers should fall into the same category as suitcases, footlockers, or other personal items that “command[] a high degree of privacy.” Salinas-Cano, 959 F.2d at 864.” United States v. Andrus, 483 F3.d 711 at 718 (2007) These cases acknowledge that the information or data contained in one’s personal computer rises to the level of utmost secrecy. We go to extraordinary levels to protect the sanctity of the data contained in our computers. A compromise of that data by an outsider, or in this case a government agent violates our expectations that its revelation to outside sources should be prevented at all cost. This violation leaves us open to potential fraud or governmental abuse. It is for these reasons that our computers carry a dignity and privacy interest that rises to the level of that which must be protected with enhanced search restrictions, even at the border. The Supreme court has already spoken on the issue of a privacy interest in a vehicle as being less than that in one’s home. Arizona v. Gant, 129 S.Ct. 1710 quoting New York v. Class, 475 U.S. 106, 112-113, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) A privacy interest in its contents, or more specifically a personal computer coincide more with those items that deserve our most stringent protections.

A computer and its hardware are personal in nature and were password protected. Often they are not subject to public use nor was there any evidence that anybody but the defendant handled them. It is typically undisputed a defendant would acknowledge ownership both at the time of his interrogation as well as at the time of arrest of such. These factors indicate his sole control over this property to the exclusion of others. It is clear that the typical defendant had a privacy interest in these belongings which deserves 4th amendment protection. The law is clear that a defendant normally bears the burden of proving that the challenged search or seizure was unconstitutional by a preponderance of the evidence. United States v. Roch, 5 F.3d 894, 897 (5th Cir.1993) (citing United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir.), cert. denied sub nom., Stewart v. United States, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977)). Once that burden has been met, then the exclusionary rule bars the admission of physical evidence and live testimony obtained directly or indirectly through the exploitation of unconstitutional police conduct as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 485-88 (1963). That is if the government is unable to overcome its burden.