Question

In 250 words or more: What types of warrantLESS searches can be performed by law enforcement collecting digital evidence? Give one example for each and the reasons why are warrants not required?

Answer 1

Types of warrantLESS searches can be performed by law enforcement collecting digital evidence

1)Stop and Frisk - There is no clear justification, under the stop and frisk doctrine, to analyze such devices based on the logic of a stop and frisk. If probable cause exists to believe evidence of a crime exists in the device the further analysis should wait, pending a warrant'.Warrantless searches of phones and pagers have been allowed due to the possibility of incoming calls deleting evidence.

For example,

New York’s stop and frisk policy has been curtailed through major lawsuits over the past two years that have further contributed to the debate surrounding this high-profile policing tactic. In October 2012, the federal court began to investigate the charge that the NYPD has systematically engaged in unconstitutional stops of the city’s residents, especially its minority residents, in the high-profile case Ligon v. City of New York. The case involves a lawsuit against the Trespass Affidavit Program (TAP), which is a component of the NYPD’s stop and frisk program that permits police officers to patrol private apartment building grounds and public spaces (e.g., hallways and common areas).

2)Consent Search - When a citizen gives permission for a search, they must be legally capable to do so while not being coerced to comply, and an stop the search at any given moment Even if physical access to a space is granted it does not come with guarantee t access of protected data. For example if a spouse of a citizen took precautions to keep the other from using a device by setting up passwords.. etc, a search of the private data cannot be based on consent.

For example,

A case is U. S. v. Wurie in 2007, police arrested Wurie for the suspected sale of drugs. After taking him to the police station, two cell phones and a set of keys were taken on his person. One of his cell phones was repeatedly receiving calls from a number identified as “my house” on the screen. The officers searched through the cell phone's call log and determine Wurie's home phone number. The officers used that number associated with the address and determined Wurie's address, which they then searched, finding 215 g of crack cocaine, a firearm, ammunition, four bags of marijuana, drug paraphernalia, and $250 in cash. Wurie was charged with possessing with intent to distribute and distributing cocaine base and with being a felon in possession of a firearm and ammunition. He filed a motion to suppress the evidence obtained as a result of the warrantless search of his cell phone.

3)Exigent Circumstances - allows law enforcement officers to search and or seize evidence without a warrant if they have probably cause and there is some pressing need to preserve evidence that is in danger of being destroyed or corrupted. The nature of digital evidence makes it subject to quick disposal and easy corruption. Encryption is another concern, once data is encrypted, the key can be almost instantaneously destroyed. It is unlikely that exigent circumstances will allow analysis of data, but will allow seizure of the devices.

For example,

If someone allows the police to search his smartphone, the police then have the right to search in the scope of consent. In the case of Florida v. Jimeno,^[17] it was held that if police wish to search closed containers within a car, they need not request separate permission to search each container, although the suspect may place an explicit limitation on the scope of a search to which he consents. Because an individual's expectation of privacy with regard to the physical characteristic of smartphone itself is distinct from and far greater than, their expectation of privacy in the contents of their smartphone, it follows that an individual's consent to a search of their smartphone cannot necessarily be understood as extending to its private contents. Authority for third-party consent should be constrained to “shared rights,” but it cannot transcend their scope of rights. For example, a mother may have authority to consent to a police search of a shared house, but she has no authority to consent to the search of items such as a briefcase and smartphones with private contents.

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4)Plain View - In order to seize an item under the plain-view doctrine, an office must: 1. see the item. 2. be legally present in the area from which the item is viewed and 3. immediately recognize that the item is subject to seizure. In regards to digital evidence it is possible that evidence not covered by a warrant will show up in a view.

For example,

A search warrant may allow an officer to search a hard drive for evidence of fraud. While conducting the analysis, the officer discovers child pornography on the hard drive. The child pornography can be seized under the plain-view doctrine, since the three requirements discussed have been met.

The “plain view” exception is mainly determined by the condition that the police finds the evidence without performing a search. This was affirmed in Arizona v. Hicks.After the Arizona Supreme Court denied review, the State petitioned for certiorari. In the Supreme Court, Justice Scalia held that: (1) no “seizure” occurred for purposes of the Fourth Amendment, when the officer merely recorded the serial numbers of stereo equipment he observed in plain view; but (2) the officer's actions in moving equipment to locate serial numbers constituted a “search” which had to be supported by probable cause, notwithstanding that the officer was lawfully present in the apartment where the equipment was located.

SOME OTHER warrantLESS searches can be performed by law enforcement collecting digital evidence

5)Border Searches- More extensive warrant less searchers are allowed to monitor contraband and other property from entering the United States, Digital evidence is included.

6)Searches by Private Citizens - If evidence is presented to law law enforcement by private citizens "on a silver platter" than the fruits of that limited search may be used to obtain a warrant for a more complete search.

7)Search Incident to Arrest - Like the stop and frisk, this exception could yield the physical container of evidence (PDA or cell phone) but would not justify analysis of the contents without exigent circumstances (batteries dying or new calls replacing numbers in memory).