SEARCH & SEIZURE OF DIGITAL EVIDENCE

1. SEARCH & SEIZUREOFDIGITAL EVIDENCE MICHAEL S. JENSEN MAGISTRATE MARION SUPERIOR COURT

2. IMPORTANT TERMS CYBER CRIME Any crime in which a computer or other digital evidence plays a role, and thus involves digital evidence.

3. Write Blocker Imaging Hashing Meta Data Delete

4. Bit = a single piece of compute data. A “1” or a “2” Byte = usually 8 bits of data

5. STEGONAGRAPHY

6. FILE EXTENSION .jpg .doc .gg .mps .mid .wpd .png .gif .dat .ini .jpg .tmp A file extension tells a program what program to use to open a file. However, a person can put any file extension on a file. For example, a .doc file can contain pictures, and a .jpg file can contain text.

7. Digital Devices

8. CELL PHONES

9. CELL PHONES TOWERS

10. DIGITAL CAMERAS

11. MP3 PLAYERS

12. COMPUTERS AND PERIPHERALS

13. STORAGE DEVICES

14. MISC. DEVICES

15. COMPETING THEORIES • Computers are no different than any other container • Computers are special.

16. PRIVATE PARTY SEARCHES The Fourth Amendment only applies to governmental search, i.e. 1. A government employee. 2. An agent of such employee.

17. REPLICATION A governmental search that merely replicates a private party search does NOT implicate the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109 (1984). [T]he Fourth Amendment is violated by a government inspection that exceeds the scope of a prior search by a private individual who discovers evidence. Lee v. State, 849 N.E.2d 602 (Ind. 2006).

18. THIRD PARTY CONSENT 1 LaFave, at § 1.8(b), p. 237 “when one subjects her property to the joint or exclusive control of another, she has thereby assumed the risk that the other person will turn that property over to the police and allow the police to examine it further.” See also Lee, supra.

19. SCOPE OF CONSENT A person may always limited the scope of their consent. Smith v. State 713 N.E.2d 338 (Ind. App. 1999).

20. COMPETING CONSENTS

21. PASSWORDS A person who shares his passwords, has no reasonable expectation of privacy in password protected files. Stolen / guessed passwords --- ?????

22. SEARCH INCIDENTTO ARREST

23. SEARCH INCIDENTTO ARREST Johnson v. State831 N.E.2d 163 (Ind. App. 2005) Scrolling through a pager is OK.

24. PLAIN VIEW If a police officer is in a place he has a right to be any evidence the officer observes in plain view may be seized

25. 2nd SEARCH WARRANTS ISSUE: An officer while lawfully searching computer files and finds evidence of a second crime --- Must he get a 2ND warrant???

26. Because the image files found on Frasier's computer were inadvertently discovered in plain view while Southerland was executing a search warrant which he objectively believed to be valid, the plain view exception is applicable Frasier v. State794 N.E.2d 449Ind.App.,2003

27. SCOPE OF DOCUMENT SEARCHES

28. RESONABLE EXPECTATION OF PRIVACY Of course, the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise “illegitimate.” To receive the protection of the Fourth Amendment, an expectation of privacy must be one that society is “prepared to recognize as legitimate.” N. J. v. T.L.O., 469 U.S. 325, 338 (1985). The expectation must be both: 1. Subjectively held, and 2. Objectively reasonable

29. BANK RECORDS U. S. v. Miller 425 U.S. 435, 1976. A person has no privacy in records maintained by a bank.

30. MAIL COVERS

31. PEN REGISTERSTRAP AND TRACE Installation and use of pen register by telephone company at police request did not constitute “search” within meaning of Fourth Amendment. Smith v. Maryland 442 U.S. 735 (1979)

32. LISTENING TO CELLPHONE CONVERSATIONS

33. FEDERAL STATUTES • Electronic Communications Privacy Act • Stored Communications Act • Trap & Trace Act • Wire Tap Act • Communications Assistance for Law Enforcement Act [askCALEA.net] • Patriot Act

34. QUIZ QUESTION Which theory does Indiana follow? 1. Computers are just another container. 2. Computers are special.

35. Questions?????

36. BONUS COVERAGE U. S. SUPREME COURT RULINGS OR A CASE OF SCALIA

37. ARIZONA v. GANT • Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. • Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

38. Gant cont. • Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches. • Justice Alito insists that the Court must demand a good reason for abandoning prior precedent. That is true enough, but it seems to me ample reason that the precedent was badly reasoned and produces erroneous (in this case unconstitutional) results. Scalia concurring

39. MONTEJO V. LOUISIANA • At a preliminary hearing required by Louisiana law, petitioner Montejo was charged with first-degree murder, and the court ordered the appointment of counsel. Later that day, the police read Montejo his rights under Miranda v. Arizona, 384 U. S. 436, and he agreed to go along on a trip to locate the murder weapon. During the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Upon returning, he finally met his court-appointed attorney. At trial, his letter was admitted over defense objection, and he was convicted and sentenced to death.

40. MONTEJO Cont. • Held: • 1. Michigan v. Jackson should be and now is overruled. • (a) The State Supreme Court’s interpretation of Jackson would lead to practical problems. Requiring an initial “invocation” of the right to counsel in order to trigger the Jackson presumption, as the court below did, might work in States that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the States, which appoint counsel without request from the defendant.

41. MONTEJO Cont. • Stare decisis does not require the Court to expand significantly the holding of a prior decision in order to cure its practical deficiencies. To the contrary, the fact that a decision has proved “unworkable” is a traditional ground for overruling it. • As for the strength of Jackson’s reasoning, when this Court creates a prophylactic rule to protect a constitutional right, the relevant “reasoning” is the weighing of the rule’s benefits against its costs. Jackson’s marginal benefits are dwarfed by its substantial costs.

42. SUPER BONUS COVERAGE Four Wise Pronouncements from Our Leaders

43. State v. Washington Asking questions concerning weapons or drugs is not a search or seizure and does not violate the US or Indiana Constitutions

44. ALVEY V. STATE “[W]e hold that a defendant cannot challenge the trial court ruling on a motion to suppress following a guilty plea, including those where the defendant reserved the right in his or her plea agreement

45. JACKSON V. STATE The good faith exception to the warrant requirement was created in large part because of the practical reality that once a neutral and detached magistrate has issued a search warrant, there is literally nothing more the policeman can do in seeking to comply with the law.

46. BANNISTER V. STATE License plate checks And stopping of a car

47. Class Dismissed