Broad Warrant to Access Email Account is Okay

For large databases or accounts of electronically stored information, the “seize first, search second” model is still applicable, especially with the inclusion of specific ex ante instructions

In re Microsoft Corp., 2016 BL 320715, D. Kan., No. 16-MJ-8036, 9/28/16.

A Federal District Court in Kansas, in reviewing a magistrate’s denial of a search warrant, reversed the decision due to the broad power the government has in searching electronically stored information. The court upheld the “seize first, search second” rule model because of the difficulty that law enforcement faces in collecting electronic data and information from computers and databases. The court, in their decision, extended the scope of the rule to include entire email accounts, although still “subject to an ex post review for reasonableness.” Generally, such warrants are denied when they do not provide some limitations, such as a limited range of dates that can be accessed in the database of files. Here, the court noted, that the warrant’s “specificity” was sufficient to satisfy the Fourth Amendment requirement because it listed the target accounts and the evidence to be seized with specific criminal violations in mind.

 http://src.bna.com/i5C

StingRay Evidence Collected Without a Warrant Violates Fourth Amendment

Evidence gathered by a cell-site simulator that allows police to identify the location of cell phones is suppressed because it violates the Fourth Amendment's prohibition of unreasonable searches

United States v. Lambis, 2016 BL 222804, S.D.N.Y., No. 15cr734, 7/12/16.

  

   A federal district court suppressed evidence gathered after police used a cell-site simulator, sometimes referred to as “StingRay.” The device creates a simulated cell signal that connects with nearby cell phones, much like a cell tower. Through the device, law enforcement can collect the name and numbers of cell phones connected to the device as well as know what text messages or incoming and outgoing calls are being made. In this case, however, the StingRay was used to track the exact location of a cell phone of someone during an investigation. By calculating the strength of the single, DEA agents were able to find the location of the cell phone and its owner.
 

   In making this ruling, the court held that the use of the StingRay equipment used to find the defendant in his apartment was an unreasonable search because the cell phone location would not have been available otherwise. The court compared this case to the thermal-imaging device used in Kylio v. United States, where the Supreme Court found the equipment violated the Fourth Amendment. There, “the Court reasoned that distinguishing between ‘off-the-wall' observations and ‘through-the-wall surveillance' would ‘leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home.” Like the thermal-imaging device, the StingRay is not in use by the general public, leading the court to rule that “[a]bsent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Lambis_No_15cr734_2016_BL_222804_SDNY_July_12_201?1469216106

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

Computer Search Techniques Need Not Be Explicit

The forensic search methods that will be used in a computer search need not be outlined in a warrant.

 

United States v. Mulcahey, 2015 BL 415955, D. Mass., No. 1:15-cr-10112, 12/17/15

    The defendants moved to suppress evidence found on the hard drives of a computer seized, with a warrant, from their business premises, arguing that the warrant was defective because it authorized only the seizure and not the search of the hard drives.

    The district court found that the warrant was proper because the language clearly identified the property to be searched and seized. The court indicated that the defendants failed to identify what conditions might be given to limit the search, and how those conditions would be applied. The court referred to a 2013 ruling from the Supreme Judicial Court of Massachusetts which rejected the idea that advanced approval of particular forensic examination methods of computers is necessary.

http://www.bloomberglaw.com/public/desktop/document/USA_v_Mulcahey_et_al_Docket_No_115cr10112_D_Mass_May_05_2015_Cour/1?1452611588

'All Passwords' Condition to Parole is Overbroad

A probation condition which requires a juvenile convicted of burglary to surrender every password used in his electronic devices, and to submit to warrantless searches of those devices, is overbroad.

 

People v. Ricardo P., 2015 BL 348208, Cal. Ct. App., No. A144149, 10/22/15

   A juvenile was sentenced to parole conditions requiring that he surrender all of the passwords for accounts in his electronic devices, and to submit to warrantless searches of those devices. The California Court of Appeal, First District, ruled that those conditions were not tailored narrowly enough to the purpose of rehabilitating the specific offender. The conditions did not minimize interference with his Constitutional rights to privacy, speech, and association.

    The court accepted that a condition for the search of an offender's electronics can be permitted so long as it is reasonably related to the goal of preventing future criminality, but that this condition as the court "interpreted it, does not limit the types of data on or accessible through his cell phone that may be searched in light of this purpose."

    The condition is overly broad because it "permits review of all sorts of private information that is highly unlikely to shed any light on whether Ricardo is complying with the other conditions of his probation, drug-related, or otherwise."

    The case was remanded to the juvenile court to tailor the conditions to fit the offender's situation given the criminal history.

    The court did also not completely write off this type of parole condition. The court recognized a sister appellate court's case about the surrender of all passwords in a case involving gang activity. In that case the 'all passwords' condition was acceptable because the offender had admitted to gang activity and there was evidence that he'd used social media to promote gang activity.

http://www.bloomberglaw.com/public/desktop/document/People_v_Ricardo_P_No_A144149_2015_BL_348208_Cal_App_1st_Dist_Oct?1448298181