Back in June I had been asked about the seizure of data from a computer in a post which set out that most basic of problems – suspects PROVIDING their computers to the cops for use AGAINST them or their spouse. My advice then was simple – don’t do that! Why make it easier on the authorities to search the totality of a hard drive for evidence of some crime – either real or imagined?You cannot expect to complain later about the illegal images found on your computer that you have voluntarily provided to the police because that consent to search is not specific or limited. It is more like a license to find that hidden treasure you thought you had deleted – but which still resides on your hard drive.
So what about the other problem posed by the use of a warrant to obtain the data from a computer? When the government seeks a warrant to examine a computer or other electronic storage device, the NInth Circuit recently held that the magistrate judge must be vigilant in protecting the owner’s rights. In a case entitled "In Re: Search Warrants Executed On April 8, 2004" and docketed as CV-04-02887-FMC, out of Pasadena, California, Chief Judge Kozinski pointed out the need for magistrates to safeguard the information that might be inadvertently seized when agents "examine" the contents of the hard drive. In other words – the review of the computer is not a fishing expedition for whatever information is there. Rather, the search must be conducted and limited by the magistrate’s finding of probable cause.
For our purposes, the decision reminds me that under our constitution, the government can not simply seize everything and then "discover" the crime. A search warrant must describe the evidence that is authorized to be seized and the search itself limited to the authority granted by the warrant.
If you have a search issue to discuss – send me an email and we can help you determine the nature and extent of the authority to search and your potential response to the examination of your private records.