Warrantless search of a computer. During a search of a computer originating from a traffic stop, Darren Chaker notes, that the 4th Amendment provides, “[t]he right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures shall not be violated.” United States v. Ramirez-Gonzalez, 87 F.3d 712 (5th Cir. 1996). Of course to encrypt a computer or similar electronic devise, counter forensics methods are used. Nonetheless, it is often argued that a defendant had a privacy interest in his vehicle and an enhanced interest in his data devices. The defendant will often assert his papers and effects are therefore constitutionally protected by the 4th amendment with only a few narrow exceptions. United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993), cert. denied, 511 U.S. 1134, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994) (wherein court found that warrantless searches and seizures are per se unreasonable unless they fall within a few narrowly defined exceptions.) Barring any of these exceptions, the government shall not legally conduct unreasonable searches and seizures of its citizens, thus an exception to the warrant requirement is typically sought.
One of these widely recognized exceptions, is based on a citizens ability and desire to waive their 4th amendment protections. It has become common practice for law enforcement, in lieu of a search warrant, to routinely request from a citizen their consent to search. This can be either in verbal or written form. The courts have seen the potential for abuses in acquiring a citizens consent to search, because they are treated as an effective waiver of one’s 4th amendment rights. It has subsequently been litigated to some degree of clarity. The Webster case reflects this idea that a consent to search equals a waiver, in a situation where it is found to have been voluntarily given under the totality of the circumstances. United States v. Webster, 162 F.3d 308, 333(5th Cir. 1998) Most circuits have given us guidance on what issues should be considered when reviewing the totality of the circumstances. The Cooper decision has provided six factors that a trial court should use in determining the voluntariness of consent. Specifically, 1. the defendant’s custodial status; 2. the presence of coercive law enforcement procedures; 3. the extent and level of the defendant’s cooperation with law enforcement; 4. the defendant’s awareness of his right to refuse to consent; 5. the defendant’s education and intelligence; and 6. the defendant’s belief that no incriminating evidence will be found. United States v. Cooper, 43 F.3d 140, 144 (5th Cir. 1995). When a motion to suppress evidence is filed, it is the prosecutors obligation to show the criteria is present.