Monday, December 22, 2008

Fourth Amendment, Computers, Bullets and Dogs

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Two issues in computer searches are the Fourth Amendment issue of whether searches are constitutional and what procedures must be used to preserve the evidence seized (Del Carmen, 2004).
Searches and seizures of computers need a warrant based on probable cause; to believe the data to be seized exists, is evidence of a crime, is presently located at the place to be searched, and a reasonably detailed description of the place to be searched and the data to be seized.

The same exceptions to the warrant requirement also apply to searches of computers; police officers may search computers without a warrant if they have a valid consent, exigent circumstances are present, in searches incident to a lawful arrest and if items are in plain view (Del Carmen, 2004).

Reasonable expectation of privacy for information stored in a computer is the same as a closed container. The Fourth Amendment prohibits law enforcement from accessing and viewing information stored in a computer without a warrant if it prohibited opening a closed container and examining its contents in the same situation.

There is no reasonable expectation of privacy when a person has made information openly available, when the contents of stolen computers are involved, when the control of the computer is given to a third party and when the owner loses control of the file.

In my opinion, there should be no expectation of privacy when it pertains to computers. It can be accessed by anyone knowledgeable in computers.

Surgery to Remove a Bullet from a Suspect
The Court held in Winston v. Lee that a proposed surgery to remove a bullet from a suspect’s chest for use as evidence would involve such severe intrusion on his interest in privacy and security that it would violate the Fourth Amendment and could not be allowed unless the government demonstrated a compelling need for it. Even though probable cause existed, the suspect was provided with all relevant procedural safeguards, but the government failed to establish the compelling need for such surgery.

Previously, in Schmerber v. California, the Court held that a state may, over the suspect’s objections, have a physician extract blood if the suspect is under suspicion of drunken driving, without violating his or her Fourth Amendment right not to be subjected to unreasonable searches and seizures. The reasoning is that the state allows minor intrusions into an individual’s body and in the case of Winston v. Lee there was the combination of the more severe intrusion and the states failure to show the compelling need for the bullet as evidence. The balancing test is, in my opinion the most just and feasible way of determining allowances of this type of seizure.

Use of Police Dogs for Detection of Drugs
“There is no “search” within the meaning of the Fourth Amendment if the police use narcotics detection dogs to smell closed containers for drugs, as long as the police are legally on the premises” (Del Carmen, 2004). In United States v. Place the Court found there is no need for a search warrant or for probable cause to conduct dog sniffs.
There are five justifications for this judicial rule listed by Del Carmen (2004) in Criminal procedures: Law and practice 6th Edition.

(1) The use of dogs does not involve any physical intrusion,
(2) The intrusion upon an individual’s privacy is inoffensive,
(3) The intrusion is restricted because the dog is discriminate,
(4) The intrusion is not aimed at persons but rather at an inanimate object, and
(5) The use of dogs is not the same as using a sophisticated electronic device.

Dogs trained to detect explosives can be used to foil the plans of a terrorist who conceals a bomb on his person in a crowded public place. If a police officer walking his beat smells marijuana coming from a group of teenagers smoking, that ordinary use of his olfactory senses is not a "search". It is not reasonable to expect privacy in activity conducted in public, where it can be seen or smelled by passersby, including the police. A trained police dog either alerts in the presence of illegal drugs, or does not alert in their absence. The sniff reveals no collateral private information about the sniffed.

Del Carmen, R. V. (2004). Criminal procedures: Law and practice (6th ed.). Belmont, CA: Wadsworth/Thomson Learning.

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