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    Colorado Criminal Law – Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations

    In Colorado Sex Crimes Investigations – Computers re often seized and searched using search warrants

    The law governing  the seizure and searches of electronic evidence in Colorado Sex Crimes criminal investigations has two primary sources:

    The Fourth Amendment to the U.S. Constitution, and the Laws of the State of Colorado.

    Searching and Seizing Computers Without a Warrant

    The Fourth Amendment limits the ability of government agents to search for evidence without a warrant. This webpage explains the constitutional limits of warrantless searches in cases involving computers.

    The Fourth Amendment states:

     The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants 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.

    According to the Supreme Court, a warrantless search does not violate the Fourth Amendment if one of two conditions is satisfied.

    Two issues must be addressed when asking whether a government search of a computer requires a warrant

    First is a warrant is required?

    And Second – Was the warrant properly obtained and executed?

    The Fourth Amendment’s “Reasonable Expectation of Privacy” in Cases Involving Computers

    A search is constitutional if it does not violate a person’s “reasonable” or “legitimate” expectation of privacy.

    Whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable.'”

    In most cases, the difficulty of contesting a defendant’s subjective expectation of privacy focuses the analysis on the objective test – that is – whether the individual’s expectation of privacy was reasonable.

    No bright line rule indicates whether an expectation of privacy is constitutionally reasonable.

    For example, the Supreme Court has held that a person has a reasonable expectation of privacy in property located inside a person’s home, – in “the relative heat of various rooms in the home” revealed through the use of a thermal imager; in conversations taking place in an enclosed phone booth, and in the contents of opaque containers.

    In contrast, a person does not have a reasonable expectation of privacy in activities conducted in open fields, in garbage deposited at the outskirts of real property, or in a stranger’s house that the person has entered without the owner’s consent in order to commit a theft.

    Reasonable Expectation of Privacy in Computers as Storage Devices

    To determine whether an individual has a reasonable expectation of privacy in information stored in a computer, it helps to treat the computer like a closed container such as a briefcase or file cabinet. The Fourth Amendment generally prohibits law enforcement from accessing and viewing information stored in a computer without a warrant if it would be prohibited from opening a closed container and examining its contents in the same situation.

    The most basic Fourth Amendment question in computer cases asks whether an individual enjoys a reasonable expectation of privacy in electronic information stored within computers (or other electronic storage devices) under the individual’s control.

    For example, do individuals have a reasonable expectation of privacy in the contents of their laptop computers, hard drives , cell phones or pagers? If the answer is “yes,” then the government ordinarily must obtain a warrant before it accesses the information stored inside.

    When confronted with this issue, courts have analogized electronic storage devices to closed containers, and have reasoned that accessing the information stored within an electronic storage device is akin to opening a closed container. Because individuals generally retain a reasonable expectation of privacy in the contents of closed containers, they also generally retain a reasonable expectation of privacy in data held within electronic storage devices.

    Therefore, accessing information stored in a computer ordinarily will implicate the owner’s reasonable expectation of privacy in the information.

    Although courts have generally agreed that electronic storage devices can be analogized to closed containers, they have reached differing conclusions over whether each individual file stored on a computer or disk should be treated as a separate closed container.

    Although individuals generally retain a reasonable expectation of privacy in computers under their control, special circumstances may eliminate that expectation. For example, an individual will not retain a reasonable expectation of privacy in information from a computer that the person has made openly available.

    Reasonable Expectation of Privacy and Third-Party Possession

    Individuals who retain a reasonable expectation of privacy in stored electronic information under their control may lose Fourth Amendment protections when they relinquish that control to third parties. For example, an individual may offer a container of electronic information to a third party by bringing a malfunctioning computer to a repair shop, or by shipping a CD Rom Disc in the mail to a friend.

    Alternatively, a user may transmit information to third parties electronically, such as by sending data across the Internet. When law enforcement agents learn of information possessed by third parties that may provide evidence of a crime, they may wish to inspect it.

    Whether the Fourth Amendment requires them to obtain a warrant before examining the information depends first upon whether the third-party possession has eliminated the individual’s reasonable expectation of privacy.

    To analyze third-party possession issues, it helps first to distinguish between possession by a carrier in the course of transmission to an intended recipient, and subsequent possession by the intended recipient.

    For example, if A hires B to carry a package to C, A’s reasonable expectation of privacy in the contents of the package during the time that B carries the package on its way to C may be different than A’s reasonable expectation of privacy after C has received the package. During transmission, contents generally retain Fourth Amendment protection.

    The government ordinarily may not examine the contents of a package in the course of transmission without a warrant. Government intrusion and examination of the contents ordinarily violates the reasonable expectation of privacy of both the sender and receiver.

    As a practical matter, then, the monitoring of wire and electronic communications in the course of transmission generally raises many statutory questions, but few constitutional ones.

    Individuals may lose Fourth Amendment protection in their computer files if they lose control of the files.

    Once an item has been received by the intended recipient, the sender’s reasonable expectation of privacy generally depends upon whether the sender can reasonably expect to retain control over the item and its contents. When a person leaves a package with a third party for temporary safekeeping, for example, he usually retains control of the package, and thus retains a reasonable expectation of privacy in its contents.

    If the sender cannot reasonably expect to retain control over the item in the third party’s possession, however, the sender no longer retains a reasonable expectation of privacy in its contents.

    In some cases, the sender may initially retain a right to control the third party’s possession, but may lose that right over time. The general rule is that the sender’s Fourth Amendment rights dissipate as the sender’s right to control the third party’s possession diminishes.

    An important line of Supreme Court cases states that individuals generally cannot reasonably expect to retain control over mere information revealed to third parties, even if the senders have a subjective expectation that the third parties will keep the information confidential.

    Because computer data is “information,” this line of cases suggests that individuals who send data over communications networks may lose Fourth Amendment protection in the data once it reaches the intended recipient.

    In a criminal prosecution the Defendants may raise a Fourth Amendment challenge to the acquisition of account records and subscriber information held by Internet service providers using less process than a full search warrant.

    The Electronic Communications Privacy Act permits the government to obtain transactional records with an “articulable facts” court order, and basic subscriber information with a subpoena.

    In 18 U.S.C. §§ 2701-2712 these statutory procedures comply with the Fourth Amendment because customers of Internet service providers do not have a reasonable expectation of privacy in customer account records maintained by and for the provider’s business.

    Private Searches

    The Fourth Amendment does not apply to searches conducted by private parties who are not acting as agents of the government.

    The Fourth Amendment “is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.”

    As a result, no violation of the Fourth Amendment occurs when a private individual acting on his own accord conducts a search and makes the results available to law enforcement.

    This standard requires agents to limit their investigation to the scope of the private search when searching without a warrant after a private search has occurred. So long as the agents limit themselves to the scope of the private search, the agents’ search will not violate the Fourth Amendment. However, as soon as agents exceed the scope of the private warrantless search, any evidence uncovered may be vulnerable to a motion to suppress.

    In computer cases, law enforcement use of the private search doctrine will depend in part on whether law enforcement examination of files not examined during the private search is seen as exceeding the scope of the private warrantless search.

    Even if courts follow the more restrictive approach, the information gleaned from the private search will often be useful in providing the probable cause needed to obtain a warrant for a further search.

    Although most private search issues arise when private third parties intentionally examine property and offer evidence of a crime to law enforcement, the same framework applies when third parties inadvertently expose evidence of a crime to plain view.

    Importantly, the fact that the person conducting a search is not a government employee does not always mean that the search is “private” for Fourth Amendment purposes. A search by a private party will be considered a Fourth Amendment government search “if the private party act[s] as an instrument or agent of the Government.”

    The Use of Technology to Obtain Information

    The government’s use of innovative technology to obtain information about a target can implicate the Fourth Amendment. In Kyllo, the Supreme Court held that the warrantless use of a thermal imager to reveal the relative amount of heat released from the various rooms of a suspect’s home was a search that violated the Fourth Amendment. In particular, the Court held that where law enforcement “uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without a physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

    Whether the individual’s conduct reflects “an actual (subjective) expectation of privacy,” , is the search nonetheless reasonable because it falls within an exception to the warrant requirement? does the search violate a reasonable expectation of privacy? , a warrantless search that violates a person’s reasonable expectation of privacy will nonetheless be “reasonable” (and therefore constitutional) if it falls within an established exception to the warrant requirement. if the government’s conduct does not violate a person’s “reasonable expectation of privacy,” then formally it does not constitute a Fourth Amendment “search” and no warrant is required.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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