Spouses May Consent to Child Porn Searches on Home Computers

A wife had the legal authority to consent to the search and seizure of her husband's electronic devises that contained child pornography.

 

United States v. Thomas, 2016 BL 103144, 11th Cir., No. 14-14680, 4/1/16

     The Eleventh Circuit Court of Appeals ruled that the evidence found on his computer should not be suppressed because his then-wife shared authority and access over the home and the computers inside. Any search made prior to the prisoner revoking consent was within the Fourth Amendment.

     The court found it 'particularly significant that Thomas did not protect his Internet history from [his wife] by maintaining a separate login name and password or by encrypting his files.'

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Thomas_No_1414680_2016_BL_103144_11th_Cir_Apr_01_?1462392789

Probationers Get Right To Digital Privacy

The government may not search a probationer's mobile phone based only on the fact that the person agreed to allow the government to search his "property" at any time.

 

United States v. Lara, 2016 BL 64094, 9th Cir., No. 14-50120, 3/3/16

      In this case, the Ninth Circuit Court of Appeals confirmed their view that a probationer's acceptance of specific search terms in a probation agreement does not, by itself, justify otherwise unconstitutional searches. The court also extended some digital privacy rights to nonviolent probationers. The court said that "there is a limit on the price the government may exact in return for granting probation."

     Without specific mention of digital devices in a probation agreement, ambiguous terms will not be read to include mobile phones and the data therein. Even a search of a probationer needs to be reasonable. That is determined by balancing the degree of intrusion against the degree to which the search is needed to advance a legitimate government interest.

     The court here indicated that even though the probationer's privacy interest was diminished, and the government had a clear interest in combatting recidivism, looking through the nonviolent probationer's phone was not justified just because they missed a meeting.

 http://www.bloomberglaw.com/public/desktop/document/UNITED_STATES_OF_AMERICA_Plaintiff_Appellee_v_PAULO_LARA_BRO_1_De?1457714431

Accused Murderers Not Allowed Access Victim's Social Media Info

Prior to trial two accused murderers will not be allowed to access the social media info of the victim and a witness.

 

Facebook Inc. v. Superior Court of S.D. City & Cty., 2015 BL 289675, Cal. Ct. App., No. A144315, 9/8/15

    The court quashed subpoenas from the accused that sought the victim and witness's subscriber information from Facebook Inc., Instagram LLC, and Twitter Inc. The social media companies' motions to quash were initially denied by the trial court. The companies petitioned for a write of mandate in the appellate court, and argued that the trial court abused its discretion.

    Though there are certain exceptions to The Stored Communications Act-which prohibits subscriber information disclosure-there is not a mechanism for criminal defendants to gain access to private communication content.

    The court was not convinced that the defendants' constitutional rights to present a complete defense, to cross-examine witnesses, and to have a fair trial, trumped the rights of privacy that the account holders have under the SCA. The court indicated that the Sixth Amendment right to confrontation and cross-examination does not guarantee pretrial access to otherwise privileged or confidential information.

    The court indicated that the level of sensitivity of the digital information that can be considered in legal proceedings is high. The court was reluctant, and indicated that many other judges are as well, to allow for a broad "everything under the sun" discovery when it comes to electronically stored information of this sort.

     For criminal situations, the SCA only allows for content disclosure to a government agency or entity pursuant to a warrant or by an administrative subpoena or a court order. The government agency is required to give specific facts showing there are reasonable grounds to believe the contents of the communication, the communication here being social media, is relevant to an ongoing criminal investigation.

     This decision is only related to pretrial discovery. The court said that "[n]othing in this opinion would preclude Defendants from seeking at trial the production of the materials sought here (or petitioners again seeking to quash subpoenas), where the trial court would be far better equipped to balance the Defendants' need for effective cross-examination and the policies the SCA is intended to serve."

http://www2.bloomberglaw.com/public/desktop/document/Facebook_Inc_v_Superior_Court_of_SF_City__Cty_No_A144315_2015_BL_