746 lines
34 KiB
Plaintext
746 lines
34 KiB
Plaintext
COMPUTER SEARCHES AND SEIZURES
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CHALLENGES FOR INVESTIGATORS
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By
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John Gales Sauls
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Special Agent
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Legal Instructor
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FBI Academy
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An informant tells a detective preparing an affidavit for a
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warrant to search a drug trafficker's home that the trafficker
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is a "computer wiz" who keeps all financial records on a "50
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megahertz 486." To trace the drug trafficking proceeds for
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forfeiture purposes, the detective wishes to seize the financial
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records.
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A second officer is investigating a crime in which a
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computer virus was introduced into a university's mainframe
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computer, shutting down the school's computer operations for 48
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hours. As a result of the officer's investigation, a computer
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science student becomes a prime suspect. In order to search the
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student's computer "account" on the school's mainframe for the
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virus' computer code, the officer seeks a search warrant. He
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also suspects the "account" to contain an article that the
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student wrote on computer viruses.
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These officers, in seeking to search for computerized
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information, must contend with both statutory and constitutional
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restraints that limit police authority. This article examines
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the effect of these legal restraints on searches for computers
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and computerized information and suggests strategies to ensure
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the admissibility of evidence detected.
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THE PRIVACY PROTECTION ACT OF 1980
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In 1980, Congress enacted a statute to give special
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protection to documentary materials prepared or gathered for
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dissemination to the public. (1) The statute requires the
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government to use a subpoena, rather than a search warrant, to
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acquire documentary materials, unless one of the statute's
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exceptions that permits the use of a search warrant applies. (2)
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Although the statute specifically provides that its
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violation is not grounds to suppress evidence, (3) it does provide
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a civil remedy in Federal court against either the government
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entity or individual officers involved in the search where a
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search warrant is used contrary to its provisions. (4)
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Because personal computers are used for word processing and
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desktop publishing with increasing frequency, officers
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contemplating use of a warrant to search for computerized
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information should consider the potential application of this
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statute. (5) When officers have reason to believe that the computer
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stores information created or gathered for public dissemination,
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they should make sure that one of the exceptions to the act's
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prohibitions applies before a search warrant is used.
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The exception most likely applicable permits the use of a
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search warrant when there is probable cause to believe the
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person possessing the materials sought "has committed or is
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committing a criminal offense to which the materials relate...."
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(6) If none of the act's exceptions apply, a subpoena should be
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used to acquire the evidence.
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DRAFTING THE APPLICATION AND SEARCH WARRANT
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The fourth amendment protects the right of the people to be
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"secure in their persons, houses, papers, and effects" against
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unreasonable government intrusion. (7) This protection extends
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to computers, which are effects, and to information processed
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and stored by computers, which can be categorized as papers.
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The constitutional demand on the officer seeking to search for
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and seize a person's computer or computerized information is
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that the search and seizure be reasonable. (8)
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"Reasonableness" is generally best achieved with a valid
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search warrant. (9) This is especially true when business or
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residential premises, the most likely locations for computers,
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must be entered to perform the search. (10)
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The fourth amendment sets forth certain procedural
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requirements that must be met for a valid warrant to be issued.
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There must be a showing of probable cause, supported by oath or
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affirmation, and the warrant must particularly describe the
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place to be searched and the persons or things to be seized.
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(11) The requirement of oath or affirmation raises no special
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problems where computer searches are concerned; however, the
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probable cause and particularity requirements pose unique
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problems where computers are the search target.
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ESTABLISHING PROBABLE CAUSE
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The fourth amendment probable cause requirement has been
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interpreted to command that before a search warrant is issued,
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the government must set forth facts that would cause a
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reasonable person to conclude that three factors are probably
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true. Specifically, it must be probably true that a crime has
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been committed, that evidence of the crime exists, and that the
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evidence presently exists at the place to be searched. (12)
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Crime Committed
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Magistrates are familiar with the mechanics of how a murder
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might be committed with a gun, but they may have difficulty
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understanding how an embezzlement might be accomplished by means
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of a computer. When computers are used to commit a crime,
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officers need to detail how the suspect committed the crime,
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primarily because the process involves unfamiliar technology.
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(13) The problem becomes an educational one. (14)
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Obviously, when seeking to convince a magistrate that a
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crime has been committed in a novel manner, an officer should
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explain the mechanics of the crime carefully and clearly. If
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the officer wishes the magistrate to consider the officer's
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interpretations of the facts, the officer must inform the
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magistrate in the affidavit of the experience and training that
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accredit these interpretations. (15)
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An officer seeking to establish probable cause that an
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unusual crime has been committed may also elect to use the
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services of an expert. (16) The challenge for the officer is
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providing sufficient details in layman's terms to familiarize
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the magistrate with the mechanics of an unusual criminal
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technique.
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Evidence of the Crime Exists
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A computer may be used as a tool to commit a crime and to
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create and/or store records of crime. In order to acquire a
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search warrant to seize both the computer and records, officers
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need to establish factually the probability that each of these
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things exists and the link between them and the criminal
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activity. When facts establish the probability that a computer
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was used to commit a crime, those same facts establish the
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existence of the computer, as well as its link to the crime.
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(17)
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When an officer seeks to establish that computerized
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records of criminal activity probably exist, the focus should be
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on establishing the creation and retention of records rather
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than the mechanism by which this was accomplished. (18) In the
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past decade, computer use to create and store records has become
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so pervasive that the concept of a document existing as binary
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code imprinted magnetically or optically on a computer disk is
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no longer novel. Consequently, when documents are the target of
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the search, the process by which the suspect created the
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documents need not be set forth for a magistrate in an
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affidavit. The critical facts are those that demonstrate the
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probability that records are being kept and that these records
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are evidence of the criminal activity.
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United States v. Falon (19) is illustrative of this point.
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In Falon, investigators established probable cause that Falon
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was operating a fraudulent loan advance fee scheme out of two
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adjacent luxury apartments. They obtained a search warrant that
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authorized the seizure of "borrowers' files; lists of borrowers;
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banking and financial records; financial statements; advertising
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records; correspondence, memoranda and documents relating to
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loans, loan guarantees, potential loans and potential loan
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guarantees; and sales literature and brochures." (20) Also
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listed were "checkbooks; canceled checks; telephone records;
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address indexes; message slips; mail, telex, and facsimile
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records; calendars and diaries; memory typewriters; word
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processors; computer disks, both hard and floppy; and other
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electronic media devices, electronic storage media and related
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software." (21)
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Items on the first list, because of the clear link to the
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fraudulent advance fee scheme set forth in the probable cause
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statement, were held to have been properly seized under the
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search warrant. (22) "Borrowers' files," for example, have a
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clear relationship to a loan advance fee scheme.
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Items on the second list were held to be insufficiently
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linked to the alleged criminal activity, and their seizure was
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held improper, causing them to be inadmissible as evidence. (23)
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"Calendars and diaries" located in the search might as likely be
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innocent and personal as criminal.
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Factually linking, in the affidavit, the relationship of
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the items to be seized to the alleged criminal activity is the
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key. Had the warrant specified, for example, "calendars listing
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events related to loan-making activity," the linking requirement
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would have been satisfied for such items. Likewise, listing
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"floppy disks containing documents related to making or
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guaranteeing loans" would make such items validly subject to
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seizure.
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Evidence Present at the Search Site
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An officer seeking to establish probable cause to search
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must also factually establish the probability that the evidence
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sought is presently located at the place to be searched. (24) At
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times, having a computer or its records as the target of the
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search may simplify meeting this requirement.
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If a suspect used a computer to commit a crime
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telephonically, it is also possible that the suspect set up the
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computer to "answer" incoming calls. This allows other computer
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operators to call it using their computer terminals and a
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telephone.
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When such an operation exists, an incoming call will be
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answered with a tone called a "carrier." (25) When a particular
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phone is answered with a "carrier," it seems reasonable for a
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magistrate, informed of the carrier's significance in the
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affidavit, to find that a computer and related equipment are
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probably present at the telephone's location. (26)
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When computerized records are sought, the magistrate should
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consider that records, by their very nature, are created to be
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kept for at least a minimum period of time. This fact, along
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with the other facts presented, should be weighed in determining
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whether the records are presently at the place to be searched.
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(27) Although each case must be evaluated on its own facts, the
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U.S. Supreme Court and lower courts have held that under
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certain circumstances, it is reasonable to expect that records
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seen 3 months previously will still be present at the location
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where they were observed. (28)
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SUFFICIENTLY PARTICULAR DESCRIPTIONS
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The fourth amendment limits valid warrants to those
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"particularly describing the place to be searched and the
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persons or things to be seized." (29) This provision mandates
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that a warrant authorizes only a search of a specific place for
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specifically named items.
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Coupled with the probable cause requirement, this provision
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prevents general searches by ensuring that warrants describe a
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discrete, defined place to be searched, describe only items
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connected with criminal activity for which probable cause has
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been established, and describe the items so definitely that it
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removes from an officer executing the warrant the unguided
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discretion of determining which items to seize. (30) It also
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provides a signal of when to end a search, that is, when all
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items named in the warrant have been located and seized or when
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all possible hiding places for items not located have been
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explored.
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The "place to be searched" portion of the particularity
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requirement has no special impact on computer searches.
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However, the "things to be seized" portion has a significant
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impact in seeking warrants to authorize the seizure of computers
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and information processed by computers.
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Describe the Computer System
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The primary rule of particularity is to describe the items
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to be seized as precisely as the facts allow. For example, when
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a computer has been reported stolen, it is reasonable to expect
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that the owner can provide a detailed description of the stolen
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item. Therefore, if the object of the search is a stolen
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computer, a detailed description, including make, model, and
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serial number, if known, will probably be required.
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When computer equipment is sought because it was an
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instrumentality of crime, only a more general description may be
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possible. For example, when a victim complains that the
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computer system has been accessed telephonically by an unknown
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person, the investigating officer may only be able to determine
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what types of devices were used to accomplish the crime. The
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officer may determine that a computer terminal (a keyboard and
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display monitor) and a modem (a device that permits digitally
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encoded computer information to be transmitted over telephone
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lines) were necessary to perform the acts accomplished, but the
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officer may not have any information regarding the manufacturers
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of the equipment, model numbers, or serial numbers. If a
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telephone trace reveals the location from which the intruding
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call originated, the officer may have probable cause to search.
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Under such circumstances, a rather general description of "a
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computer terminal and modem of unknown make or model" would
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likely suffice. (31)
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Because numerous component parts comprise computer systems,
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an investigator applying for a warrant to seize a computer
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should ensure that the warrant describes all computer system
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parts that are probably present, including mechanisms for data
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storage. (32) Consulting with an expert increases the likelihood
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of listing thoroughly the items of evidence probably present.
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The expert's education and experience should be set forth in the
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affidavit to give the magistrate a sound basis for concluding
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that the items sought are probably located at the place to be
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searched.
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Information Processed By Computer
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Because the fourth amendment particularity requirement is
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strictly applied where documents are concerned, the descriptive
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task where computerized information is the subject of a search
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warrant is often a demanding one. (33) Nonetheless, courts
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reviewing applications for search warrants evaluate the
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particularity of the document's description in light of the
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degree of precision that the facts of a case allow.
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For example, in United States v. Timpani, (34) a search
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warrant authorizing the seizure of "any and all records relating
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to extortionate credit transactions (loansharking)" (35) was
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challenged as being insufficiently particular. In reviewing the
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warrant, the court noted that the warrant included a lengthy
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list of types of records (including "lists of loan customers,
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loan accounts, telephone numbers, address books" (36)) and that
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the warrant "provide[d] a standard for segregating the
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`innocent' from the `culpable' in the form of requiring a
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connection with [the] specific, indentifiable crime [of
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loansharking]." (37) The court upheld the particularity of the
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warrant, stating, "It is difficult to see how the search warrant
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could have been made more precise." (38)
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When aware of specific documents sought, an officer should
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designate them by type (letter, memo, etc.), date, subject,
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author, and addressee, providing as much detail as possible.
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For example, when "a letter from John Jones to Bill Smith dated
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November 9, 1985, and concerning the ownership of 200 shares of
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IBM stock" is sought, officers should describe the letter in
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such specific terms.
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When only the general nature of the information sought is
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known, a highly detailed description is impossible. In such
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cases, officers must use great care to give a description that
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includes the information sought but limits the search as
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narrowly as possible. This is accomplished by using a general
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description, qualified by some standard that will enable the
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executing officers to separate the information to be seized from
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innocent information that may also be present.
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Such limiting phrases must be crafted based on the facts
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establishing probable cause to search. If the facts establish
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that the information sought comes from a particular time period,
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the phrase should limit the warrant to information of that time
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period. If the information sought is known to have been
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produced by a particular individual, the phrase should limit the
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description to material authored by that person. If the phrase
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combines several such factors, it is even more effective. As
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in United States v. Timpani, the phrase may restrict the
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description to particular criminal conduct. In that case, the
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limiting phrase was "records relating to extortionate credit
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transactions (loansharking)." (39)
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It is most important that the limiting phrase restrict the
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scope of the search so that it remains within the bounds of the
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probable cause set out in the affidavit. A warrant may not
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validly authorize the seizure of items for which probable cause
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to search has not been established. In upholding the
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description of items in the warrant in the Timpani case, the
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court noted that "[e]ach item is plausibly related to the
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crime--loansharking or gambling--that is specifically set out [in
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the affidavit]." (40) The description, even though the items to
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be seized were described in generic terms, did not exceed the
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probable cause because of the use of an appropriately narrow
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limiting phrase. (41)
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When information sought is described with sufficient
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particularity, the form in which the information may be found is
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not of great concern. Concluding the list of described items
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with the phrase "the documents listed above may be found in
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written or electronic form" should be sufficient to permit
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lawful seizures of the documents regardless of the form in which
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they are found. (42)
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EXECUTING THE SEARCH WARRANT
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The protection of the fourth amendment does not end when an
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officer obtains a valid search warrant. The right of citizens
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to be free of "unreasonable searches and seizures" extends to
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the manner in which officers execute a search warrant.
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The "reasonableness" requirement demands that officers
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executing search warrants:
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1) Give notice of their authority and purpose, under most
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circumstances, prior to forcibly entering premises to
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execute the warrant
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2) Take only reasonable action, once inside, to control
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the premises and prevent the destruction of evidence
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3) Conduct the search within the limits set forth in the
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warrant, and
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4) Refrain from seizing items not listed in the warrant
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(unless there are independent, legal grounds for the
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seizure).
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Each of these requirements has potential impact on computer
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searches.
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The "Knock and Announce" Requirement
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To protect safety, and because of a judicial preference for
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peacable entries based on submission to lawful authority,
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officers are generally required to knock and announce their
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identity and purpose before forcibly entering premises to
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perform a search. (43) This requirement is subject to certain
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exceptions that allow entry without notice under certain
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circumstances, including when officers have information that an
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announcement would likely result in the destruction of evidence.
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(44) The ease and rapidity of destruction of the evidence sought
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is a factor courts will consider in determining whether a
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"no-knock" entry was reasonable. (45)
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Due to the manner in which it is processed and stored,
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computerized information is easily and quickly destroyed.
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Information in the computer's active memory can be instantly
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destroyed by switching off the machine's power. Information
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stored on magnetic media (with capacities of thousands of pages)
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can be quickly erased by exposing the storage device to a
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magnet. Consequently, when officers know prior to executing a
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warrant that information has been stored by computer and that
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persons with a motive to destroy the information are likely
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present at the place to be searched, an unannounced entry is
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likely reasonable. (46)
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Controlling the Premises
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The U.S. Supreme Court has noted that officers executing a
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search warrant exercise "unquestioned command of the situation."
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(47) Consequently, officers executing a search warrant have the
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power to control access to the premises being searched and to
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control the movement of persons present to facilitate the search
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and to prevent the removal or destruction of evidence. Because
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of the ease of destruction of computerized information and the
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size and complexity of some computer facilities, it will often
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be reasonable to take full control quickly of the facility to be
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searched. (48)
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Searching Within the Scope of the Warrant
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Requiring a particular description of the items to be
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seized limits the allowable scope of a search in two ways.
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First, it restricts where an officer may look to only those
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places where the items sought might reasonably be concealed.
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(49) Second, it restricts the duration of the search to the
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point where either all listed items have been located and seized
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or until all possible places of concealment have been explored.
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(50) Failure to comply with either of these restrictions can
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result in a search that violates the fourth amendment.
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A sensible first step is to ensure that all searching
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officers know the items listed on the warrant. (51) Once on the
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scene, the officers should carefully restrict the search to the
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items listed in the warrant.
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A problem that frequently arises is that of sorting the
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items subject to seizure from those that are innocently
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possessed. This problem is especially common in cases where
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business records are the target of the search. In all cases,
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the officers must limit the examination of innocent items to
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that necessary to determine whether the items are among those
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listed in the warrant. (52)
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A search for documents stored in electronic form by a
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computer will require use of the computer's display screen to
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view documents or the computer's printer to print them. A
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sorting process should be used where each document is briefly
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examined to determine if it is one of those to be seized,
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similar to that used to search through "ink on paper" documents.
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Obviously, this type of search requires certain operational
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knowledge regarding computer equipment. For this reason, expert
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assistance during the search may be essential, especially where
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efforts have been made to encrypt or conceal the documents. (53)
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In general, the sorting process should be performed at the
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scene of the search to prevent unnecessarily denying the owner
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access to and use of innocent records. The mere fact that the
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sorting process is time consuming does not justify a wholesale
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seizure of all records present.
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Nonetheless, certain characteristics of computerized
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recordkeeping support off-site sorting. First, the storage
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capacity of some computerized systems is so great that review of
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all documents stored in the system could take a very long time.
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Second, unlike with paper files, the number of investigators who
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may assist in the search is limited by the number of computer
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terminals available for document display. Finally, records
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stored by computer can usually be quickly duplicated in their
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computerized form, allowing copies to be left for the owner's
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use.
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|
||
Officers who anticipate the need to seize a large quantity
|
||
of computerized documents for sorting at a later time should
|
||
seek approval from the magistrate when applying for the search
|
||
warrant. A likely legal concern in this situation is that the
|
||
innocent documents included in the seized records will be
|
||
available for unrestrained viewing by investigators, resulting
|
||
in a postponed "general search." A potential control on such
|
||
unrestricted viewing is continued judicial supervision of the
|
||
sorting process. (54)
|
||
|
||
Disconnecting the Computer from Telephone Lines
|
||
|
||
The Electronic Communications Privacy Act of 1986 provides
|
||
that in order to intercept an electronic communication (which
|
||
includes transmission of words or characters from computer to
|
||
computer) during its transmission, without the consent of one of
|
||
the parties to that communication, an officer must obtain an
|
||
extraordinary court order, similar to that required to lawfully
|
||
wiretap. (55) Because the computer that is the subject of a
|
||
search warrant may be connected electronically to others,
|
||
forbidden interception of electronic communications might result
|
||
during execution of the warrant. To avoid this, and to ensure
|
||
that commands to destroy evidence are not transmitted to the
|
||
computer from a remote location, it is sound practice to
|
||
disconnect the computer from telephone lines at the outset of
|
||
the search.
|
||
|
||
CONCLUSION
|
||
|
||
Addressing the situations faced by the two officers
|
||
described at the beginning of this article, the first officer
|
||
needs to establish factually in his affidavit the probable
|
||
existence of financial records that are evidence of crime, and
|
||
to describe particularly those records in the search warrant.
|
||
The fact that the records may be computerized somewhat
|
||
complicates the execution of the warrant, and the officer may
|
||
need to seek expert guidance in order to locate and seize the
|
||
records in question successfully.
|
||
|
||
The second officer needs to consider whether the Privacy
|
||
Protection Act of 1980 permits the use of a search warrant in
|
||
his case when he is seeking authority to search for items he
|
||
reasonably believes are, in part, materials prepared for public
|
||
dissemination that are in the possession of an innocent third
|
||
party. If the officer determines that a search warrant is
|
||
appropriate under the circumstances, the officer must then
|
||
contend with the challenge of communicating to the magistrate
|
||
how a novel criminal offense has been committed by means of a
|
||
computer.
|
||
|
||
As officers approach such challenges, they should carefully
|
||
adhere to established fourth amendment principles. These
|
||
principles, coupled with the use of expert assistance where
|
||
needed, enhance the likelihood of obtaining computerized
|
||
evidence that is judicially admissible.
|
||
|
||
|
||
ENDNOTES
|
||
|
||
(1) Privacy Protection Act of 1980, 42 U.S.C. 2000aa,
|
||
et seq.
|
||
|
||
(2) 42 U.S.C. 2000aa.
|
||
|
||
(3) 42 U.S.C. 2000aa-6(e).
|
||
|
||
(4) 42 U.S.C. 2000aa-6. The statute also provides for
|
||
award of costs and attorneys fees to a prevailing plaintiff.
|
||
For a detailed discussion of the act, see Rissler, "The Privacy
|
||
Protection Act of 1980," FBI Law Enforcement Bulletin, February
|
||
1981.
|
||
|
||
(5) Federal law enforcement officers should be aware that
|
||
the Attorney General, as directed by 42 U.S.C. 2000aa-11, has
|
||
issued guidelines to assure compliance with the Privacy
|
||
Protection Act of 1980, which Federal officers must follow to
|
||
avoid being the subject of disciplinary proceedings. These
|
||
guidelines are found at 28 CFR Part 59.
|
||
|
||
(6) 42 U.S.C. 2000aa(a)(1), 2000aa(b)(1).
|
||
|
||
(7) U.S. Const. amend. IV.
|
||
|
||
(8) See Katz v. United States, 389 U.S. 347 (1967).
|
||
|
||
(9) Id. at 357.
|
||
|
||
(10) See Michigan v. Tyler, 436 U.S. 499 (1978).
|
||
|
||
(11) U.S. Const. amend. IV.
|
||
|
||
(12) Zurcher v. Stanford Daily, 436 U.S. 547, 556-557 n. 6
|
||
(1978), quoting Comment, 28 U. Chi. L. Rev. 664, 687 (1961).
|
||
|
||
(13) See, e.g., United States v. Morris, 928 F.2d 504, (2d
|
||
Cir. 1991), cert. denied, 112 S.Ct. 72 (1991) (defendant
|
||
introduced computer "worm" into national research computer
|
||
network, shutting down university and government computer
|
||
systems across the country); United States v. Taylor, 945 F.2d
|
||
1050 (8th Cir. 1991) (defendant accessed American Express
|
||
computer system by phone and acquired "working" but unissued
|
||
credit card numbers, which he then used to purchase thousands of
|
||
dollars worth of merchandise).
|
||
|
||
(14) An example of an officer successfully obtaining a
|
||
search warrant in a case where novel technology was being
|
||
employed to commit the crime of fraud is found in Ottensmeyer v.
|
||
Chesapeake & Potomac Telephone Co., 756 F.2d 986 (4th Cir.
|
||
1985).
|
||
|
||
(15) See, e.g., United States v. Ortiz, 422 U.S. 891
|
||
(1975).
|
||
|
||
(16) An example of using information provided by experts
|
||
in affidavits for search warrants is found in United States v.
|
||
Steerwell Leisure Corp., Inc, 598 F. Supp. 171 (W.D.N.Y. 1984).
|
||
|
||
(17) See United States v. Steerwell Leisure Corp., Inc.,
|
||
598 F. Supp. 171 (W.D.N.Y. 1984).
|
||
|
||
(18) See, e.g., United States v. Truglio, 731 F.2d 1123
|
||
(4th Cir. 1984), cert. denied, 469 U.S. 862 (1984).
|
||
|
||
(19) 959 F.2d 1143 (1st Cir. 1992).
|
||
|
||
(20) Id. at 1149.
|
||
|
||
(21) Id. at 1145.
|
||
|
||
(22) Id. at 1149.
|
||
|
||
(23) Id.
|
||
|
||
(24) Illinois v. Gates, 462 U.S. 213, 238 (1983).
|
||
|
||
(25) See Fitzgerald and Eason, Fundamentals of Data
|
||
Communication (John Wiley & Sons, 1978), pp. 42-43.
|
||
|
||
(26) Cf. United States v. Harvey, 540 F.2d 1345 (8th Cir.
|
||
1976).
|
||
|
||
(27) United States v. McManus, 719 F.2d 1395 (6th Cir.
|
||
1983).
|
||
|
||
(28) Andresen v. Maryland, 427 U.S. 463, 478 n. 9 (1976).
|
||
|
||
(29) U.S. Const. amend. IV.
|
||
|
||
(30) See Marron v. United States, 275 U.S. 192 (1927).
|
||
For a thorough discussion, see 2 W. LaFave, Search and Seizure,
|
||
95-101 (1978).
|
||
|
||
(31) An analogous case is State v. Van Wert, 199 N.W.2d
|
||
514 (Minn. 1972).
|
||
|
||
(32) Equipment components will probably include a central
|
||
processing unit, printers, terminals (keyboards and display
|
||
screens), magnetic disk drives, optical disk drives, and
|
||
magnetic tape drives. Software and manuals are also critical
|
||
components of an operating computer system and should be
|
||
included as items to be seized, especially if the officer
|
||
anticipates operating the system for investigative or
|
||
evidentiary purposes. Common storage media include magnetic
|
||
hard disks, floppy disks, and magnetic tapes, as well as optical
|
||
disks.
|
||
|
||
(33) See Andresen v. Maryland, 427 U.S. 463 (1976).
|
||
|
||
(34) 665 F.2d 1 (1st Cir. 1981).
|
||
|
||
(35) Id. at 4.
|
||
|
||
(36) Id.
|
||
|
||
(37) Id. at 5.
|
||
|
||
(38) Id.
|
||
|
||
(39) Id. at 4.
|
||
|
||
(40) Id. at 5.
|
||
|
||
(41) An innovative means of limiting the items described
|
||
to those for which probable cause to search has been established
|
||
is found in the case In Re Search Warrant Dated July 4, 1977,
|
||
Etc., 667 F.2d 117 (D.C. Cir. 1981), cert. denied, 102 S.Ct.
|
||
1971 (1982). Here, the scope of the description of items to be
|
||
seized was limited to documents related to "the crimes ... which
|
||
facts recited in the accompanying affidavit make out." The
|
||
court, in upholding the warrant, noted with approval the
|
||
limiting phrase. As was done in this case, it is often
|
||
desirable to incorporate the affidavit into the warrant by
|
||
appropriate language and to attach it to the warrant.
|
||
|
||
(42) See United States v. Truglio, 731 F.2d 1123 (4th Cir.
|
||
1984), cert. denied, 469 U.S. 862 (1984). See also, United
|
||
States v. Offices Known as 50 State Distrib., 708 F.2d 1371
|
||
(9th cir. 1983), cert. denied, 79 L.Ed.2d 677 (1984).
|
||
|
||
(43) For a thorough discussion, see 2 W. LaFave, Search
|
||
and Seizure, 122-140 (1978).
|
||
|
||
(44) Id.
|
||
|
||
(45) Id.
|
||
|
||
(46) Id. The announcement requirement is also less
|
||
stringently applied where warrants are executed against business
|
||
premises. See United States v. Francis, 646 F.2d 251, 258 (6th
|
||
Cir. 1981), cert. denied, 70 L.Ed.2d 616 (1981).
|
||
|
||
(47) Michigan v. Summers, 452 U.S. 692, 703 (1981).
|
||
|
||
(48) An example of such action is found in United States
|
||
v. Offices Known as 50 State Distrib., 708 F.2d 1371 (9th Cir.
|
||
1983), cert denied, 79 L.Ed.2d 677 (1984).
|
||
|
||
(49) Harris v. United States, 331 U.S. 145 (1947).
|
||
|
||
(50) Id. In addition to suppression of evidence, civil
|
||
liabilityy may result when a search continues after all items
|
||
named in the warrant have been seized. See Creamer v. Porter,
|
||
754 F.2d 1311 (5th Cir. 1985).
|
||
|
||
(51) See In Re Search Warrant dated July 4, 1977, Etc.,
|
||
667 F.2d 117, 123 (D.C.Cir. 1981), cert. denied, 102 S.Ct. 1971
|
||
(1982) (noting with approval that "[i]n preparation for the
|
||
search the agents attended several meetings to discuss and
|
||
familiarize themselves with the areas and documents described in
|
||
the search warrant and accompanying affidavit. They were
|
||
instructed to confine themselves to these areas and documents in
|
||
their search. During the search each agent carried with him a
|
||
copy of the search warrant and its 'Description of Property' and
|
||
could contact one of three persons on the scene who carried the
|
||
supporting affidavit.")
|
||
|
||
(52) An officer executing a search warrant will frequently
|
||
need to sort through information to determine what portion of it
|
||
may be seized pursuant to the warrant. If, during the course of
|
||
the process, the allowed limited perusal of information is
|
||
sufficient to cause the officer to conclude that the information
|
||
is probable evidence of a crime, the officer may lawfully seize
|
||
the document without obtaining a second warrant under the "plain
|
||
view" exception provided he can later demonstrate that he was
|
||
searching reasonably within the limits of the warrant he was
|
||
executing when he encountered the evidence, and there was
|
||
probable cause upon proper examination of the item that it was
|
||
evidence of criminal activity. Horton v. California, 110 S.Ct.
|
||
2301 (1990).
|
||
|
||
(53) An expert accompanied officers executing the search
|
||
warrant in Ottensmeyer v. Chesapeake & Potomac Telephone Co.,
|
||
756 F.2d 986 (4th Cir. 1985). Another case considering the role
|
||
of an expert accompanying officers executing a search warrant is
|
||
Forro Precision, Inc. v. International Business Machines Corp.,
|
||
673 F.2d 1045 (9th Cir. 1982).
|
||
|
||
(54) See United States v. Tamura, 694 F.2d 591 (9th Cir.
|
||
1982); DeMassa v. Nunez, 747 F.2d 1283 (9th Cir. 1984) (special
|
||
master appointed to supervise sorting of documents during search
|
||
of attorney's office).
|
||
|
||
(55) 18 U.S.C. 2511(1).
|
||
|