Search and Seizure of Computers in Criminal Cases

September 4, 2023 Don Pumphrey, Jr. Criminal Defense Social Share

The role of computers has become increasingly significant for criminal cases in today’s digital age. When police believe a crime has been committed using a computer, or that incriminating evidence is stored on a computer, they may attempt to conduct a search and seizure of the device.

The Fourth Amendment protects individuals from unreasonable search and seizures. In cases involving digital devices, law enforcement is expected to obtain a warrant before conducting a search of the devices. But there are exceptions to this rule. It is important to be familiar with the laws and processes involving search and seizures of a computer if you are being prosecuted for a criminal offense involving digital devices.

If you are facing criminal charges involving a computer or digital device, a defense attorney can help with your case. Hiring an attorney is beneficial for scrutinizing the legal intricacies of the search and seizure of your computer or digital devices. This can include evaluating the legality of the search warrant or determining if any constitutional rights were violated during the search and seizure.

What is Search and Seizure?

A search and seizure is an examination used by law enforcement to analyze a suspected person’s home, vehicle, business, electronic devices, or other locations suspected to contain evidence of a crime.

The “search” involves police reviewing or analyzing part or all the individual’s property in hopes of finding clues or evidence pointing to the crime that was committed. If law enforcement takes possession of any of the suspected person’s items during the search, this is considered the “seizure.”

Fourth Amendment

The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures. It also establishes when a warrant is necessary to conduct a search or seizure.

In its goal of protecting citizens from unlawful search and seizures, the Fourth Amendment states the following:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In cases involving electronic devices, law enforcement will typically obtain a search warrant before attempting to retrieve the devices for later search thereof. Most electronic devices suspected of containing incriminating materials will be stored in an individual’s home or place of employment. This would require law enforcement to enter the home or place of employment to locate the device. It is important to note that a search of a house is presumptively unreasonable, thereby requiring a search warrant to enter the home.

Determining whether a search warrant is required hinges on whether the search would intrude upon an individual’s reasonable expectation of privacy. Things that are abandoned or are visible without intrusion (i.e., in plain view) typically do not require a search warrant. Meanwhile, things inside the curtilage of a home, or stored therein, would usually require a search warrant due to the reasonable expectation of privacy associated with a person’s place of residence.

In 2014, the United States Supreme Court determined that law enforcement may not search the contents of digital devices without a warrant or the owner’s consent. This decision was based on the fact that electronic devices are minicomputers filled with massive amounts of private information, which is different from an item like a wallet. When a digital device has been recovered in a standard search and seizure, law enforcement is expected to preserve the device and wait for a warrant authorizing an additional search of the device’s contents if a warrant has not already been issued for the contents of the device.

The warrant obtained by law enforcement must follow strict requirements to be considered legally valid.  There must be (1) probable cause to believe that there is evidence of a crime stored therein; (2) an oath and affirmation from the requesting officer; (3) particularity relating to the things/items to be searched; and (4) authorization from a neutral magistrate.

Consider a scenario where law enforcement has received a warrant to search John Doe’s house. In the search warrant, the requesting officer must (1) explain the circumstances and evidence leading them to believe that there is evidence of a crime stored in the house; (2) sign their request while under oath and affirm that the facts are true; (3) describe in detail the house to be searched; and (4) submit their request to an impartial judge who in turn will either grant their request or deny their request for the search.

But, in this scenario, the officer would not necessarily have the authority to conduct additional searches of the contents stored in the devices found in John Doe’s home. If law enforcement suspects that there will be evidence of a crime stored in an electronic device that is harbored in the home, they must either include their request to search the devices in their initial warrant or they must submit a secondary affidavit requesting a warrant after the device has been seized from the home.

What Types of Criminal Cases Involve Search and Seizure of Computers?

Certain crimes can be committed with the use of a mobile phone, laptop, or a network server. Examples of technology used in crimes include emailing a death threat or downloading images considered to be child pornography.

The following lists several types of criminal cases in Florida which may result in police’s search and seizure of a computer or other digital device:

• Cybercrimes – Certain cases that involve computer hacking, identity theft, cyberstalking, or other digital crimes may result in law enforcement searching the suspect’s devices.
• Child Pornography Cases – When a person is suspected of possessing, producing, or distributing child pornography, law enforcement will likely involve the search and seizure of computers, laptops, cell phones, or any other digital device which may contain illicit content.
• Fraud Cases – Police may search and seize digital devices when a person is suspected of fraudulent activities, such as embezzlement, money laundering, or forgery and counterfeiting.
• Drug-related Cases – Cases involving drug trafficking or distribution can result in police search and seizing digital devices for traces of drug transactions, communications between the buyers and seller, and financial records.
• Terrorist Activities – Law enforcement will search and seize the digital devices of a defendant who is suspected of extremist activities, online radicalization, or other suspected terrorism to find evidence of any communication or planning of illegal activity.
• Written Threats – When a person is accused of writing or composing a written threat (even through electronic communication) law enforcement may search and seize the suspect’s digital devices for evidence of the written threat.

If you have been accused of any criminal offense which resulted in a search and seizure of your computer or other digital devices, contact a Tallahassee defense attorney to represent you in your case.

Search and Seizure of Computers with a Warrant

According to the Office of Legal Education (OLE), a computer’s hard drive can contain many different types of evidence. It is important for police to consider what type of evidence a search could reveal when drafting a warrant application.

A computer can play several different roles in a criminal offense:

1. Contraband – A computer is considered contraband because it was either storing contraband (such as child pornography) or because the computer was stolen.
2. Evidence of a crime – A computer can be considered evidence of a crime if it stores data displaying illegal activities, such as:
   • A spreadsheet displaying illegal drug transactions;
   • A letter used in a fraud scheme; or
   • A log of files showing IP addresses assigned to the computer and websites accessed.
3. Instrumentality of a crime – A computer is considered an instrumentality of a crime when it is used to hack into a website, to distribute copyrighted videos, or to produce illicit pornography.

Additionally, it is important to consider the goals of a computer search and how to find each type of evidence. The following are examples of frequent goals of a computer search and how the search can meet it:

• For police to prove a specific person put contraband on the computer’s hard drive rather than another person with access to the computer, they may search for evidence that a specific person was logged on, or for evidence on the computer after the offense of the suspect checking their email or bank account.
• For police to prove that a virus or malware was not responsible for illicit child pornography on a computer, they may search the computer and run a virus-checking program on the image of the computer’s hard drive.
• For police to prove that the suspect had knowledge on a specific, illegal subject, they may search the web browsing history, which could reveal research for illegal activities such as “how to build a methamphetamine lab.”

The process for drafting an affidavit and warrant application falls into two steps: establishing probable cause and describing in detail the data to be taken from the computer or hardware.

The probable cause for searching a computer or other digital device is the belief that the media either contains or is contraband, evidence of a crime, or an instrumentality of a crime. Specifically, the Supreme Court states that the probable cause standard is satisfied when the affidavit establishes, “a fair probability that contraband or evidence of a crime will be found in a particular place.”

Are There Any Exceptions to Using a Warrant?

Law enforcement does not always have to obtain a search warrant in criminal cases involving computers; however, to do so it must fall within one of the following established exceptions to the warrant requirement:

• Consent – If the person with authority of the computer or digital device voluntarily consents to the search, then police do not need to obtain a search warrant first. The Supreme Court considers age, education, intelligence, and the physical and mental condition of the person giving consent.
• Plain view – If there is evidence of a crime in plain view, it may be seized by law enforcement without a warrant. However, the officer must be in a lawful position to observe and access the evidence and its incriminating content must be immediately apparent. For example, if a person is viewing child pornography on their laptop in a public location and a police officer witness it.
• Border Search – The Supreme Court recognized the exception for a search warrant requirement for searches at the U.S. border. Further, routine searches at a U.S. border does not require a warrant, probable cause, or even reasonable suspicion that the search may uncover evidence or contraband.
• Probation and Parole – An individual who is on probation, parole, or supervised release is subject to warrantless searches based on reasonable suspicion.

Can Police Search and Seize My Work Computer?

Yes, law enforcement can search and seize a work computer to investigate incriminating evidence. For police to conduct a warrantless search of a workplace computer, it depends on several distinctions such as whether it is a public or private sector.

A warrantless search of a public or government sector is granted and the employee’s reasonable expectation of privacy if it includes work-related, non-investigatory intrusions and reasonable investigations into work-related conduct.

A warrantless search of a private sector is granted only if the officers obtain consent from either the employer or employee who has authority over the searched area or device.

Will a Computer be Returned After Search and Seizure?

If law enforcement has taken a computer or other digital device for a search and seizure, it is likely because they suspect it contains incriminating evidence. Any evidence seized in a criminal investigation will be held until the legal proceedings end. In some cases, a defense attorney can file a Return of Property motion to reclaim the defendant’s property. However, if police determine that the device is subject to forfeiture, they may be able to sell, keep, or destroy the property. You can read more about the forfeiture and keeping of seized evidence in our blog post here.

United States vs. Ganias

While the Fourth Amendment was drafted with physical property in mind, there have been issues involving the search and seizure of digital evidence. An example is the case United States vs. Ganias. In Ganias, the Second U.S. Circuit COurt of Appeals considered an issue of whether the government should be allowed to retain electronic evidence collected from a search warrant for an extended period of time to later search for a separate offense.

In a brief case overview, Stavros Ganias worked as an IRS accountant in 2003 when the government was alerted that two of his clients were suspected of fraud. Investigators received a warrant to search Ganias’ files, even though he was not the one suspected of the fraud.

Law enforcement searched his data “relating to the business, financial, and accounting operations” involving the two suspects. Due to the impracticality of sorting through responsive and nonresponsive data, the agents created what is referred to as mirror images of all data from the three seized computers so it could be reviewed later, off-site.

In creating the mirror images of all data, law enforcement ended up seizing data that did not pertain to just the two suspects and was therefore outside of the search warrant’s scope. While Ganias claimed that the responsive documents were segregated by the end of 2004, he had suddenly become the suspect of a tax fraud offense in July 2005. Investigators managed to obtain another search warrant in 2006 to review the mirror images that were originally obtained in 2003. Despite Ganias and his attorney filing a motion to have the evidence suppressed, he was indicted and then convicted of two counts of tax evasion in 2006.

Ganias appealed the conviction, and the Second Circuit panel unanimously decided that the defendant’s Fourth Amendment rights had been violated. It was determined that the retention of the digital evidence in the “mirror images” for over two years, and the Second Circuit panel agreed to suppress the evidence and vacate Ganias’ conviction. However, they then decided to hold an en banc hearing—a special procedure where all judges from a particular court hear a case.

In the end, the court declined to rule on whether retaining forensic mirrors violates the Fourth Amendment. They also refused to suppress any of the evidence based on what is known as the “good faith” exception. The exception explains that as long as law enforcement had reasonable, good faith to believe they were acting according to legal authority, then the illegally seized item(s) will be admissible as evidence.

The decision made in the Ganias case indicated that the government is not allowed to “retain all non-responsive documents indefinitely;” however, the implied “right to deletion” the case’s opinion did not give an exact time frame of when such data should be deleted.

To review U.S. vs Ganias opinion in its entirety, please refer to the case text here.

Consult with a Florida Defense Attorney Regarding Search and Seizure

Have you been accused of a crime in Tallahassee or the surrounding areas? If you have dealt with the stress and anxiety of your devices getting seized by police, you should immediately consult with a defense attorney. While Florida law provides law enforcement with the ability to search and seize items in a criminal investigation, there can still be mistakes or mishaps that can result in your charges getting lessened or dismissed.

Contact Pumphrey Law Firm to receive a free consultation regarding your case when you call (850) 681-7777 or leave us a message on our website.

Written by Karissa Key

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