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SEARCH & SEIZURE OF DIGITAL EVIDENCE. MICHAEL S. JENSEN MAGISTRATE MARION SUPERIOR COURT. IMPORTANT TERMS. CYBER CRIME Any crime in which a computer or other digital evidence plays a role, and thus involves digital evidence. Write Blocker Imaging Hashing Meta Data Delete.

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SEARCH & SEIZURE OF DIGITAL EVIDENCE

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SEARCH & SEIZUREOFDIGITAL EVIDENCE

MICHAEL S. JENSEN

MAGISTRATE

MARION SUPERIOR COURT


IMPORTANT TERMS

CYBER CRIME

Any crime in which a computer or other digital evidence plays a role, and thus involves digital evidence.


Write Blocker

Imaging

Hashing

Meta Data

Delete


Bit = a single piece of compute data. A “1” or a “2”

Byte = usually 8 bits

of data


STEGONAGRAPHY


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.


Digital Devices


CELL PHONES


CELL PHONES

TOWERS


DIGITAL

CAMERAS


MP3

PLAYERS


COMPUTERS

AND

PERIPHERALS


STORAGE

DEVICES


MISC.

DEVICES


COMPETING THEORIES

  • Computers are no different

    than any other container

  • Computers are special.


PRIVATE PARTY SEARCHES

The Fourth Amendment only applies to governmental search, i.e.

1.A government employee.

2.An agent of such employee.


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).


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.


SCOPE OF CONSENT

A person may always limited the scope of their consent.

Smith v. State

713 N.E.2d 338

(Ind. App. 1999).


COMPETING CONSENTS


PASSWORDS

A person who shares his passwords, has no reasonable expectation of privacy in password protected files.

Stolen / guessed passwords --- ?????


SEARCH INCIDENTTO ARREST


SEARCH INCIDENTTO ARREST

Johnson v. State831 N.E.2d 163

(Ind. App. 2005)

Scrolling through

a pager is OK.


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


2nd SEARCH WARRANTS

ISSUE: An officer while lawfully searching computer files and

finds evidence of a

second crime ---

Must he get a 2ND

warrant???


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


SCOPE OF DOCUMENT SEARCHES


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


BANK RECORDS

U. S. v. Miller

425 U.S. 435,

1976.

A person has no privacy

in records maintained

by a bank.


MAIL COVERS


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)


LISTENING TO CELLPHONE CONVERSATIONS


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


QUIZ QUESTION

Which theory does Indiana follow?

1. Computers are just another container.

2. Computers are special.


Questions?????


BONUS COVERAGE

U. S. SUPREME COURT RULINGS

OR

A CASE OF SCALIA


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.


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


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.


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.


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.


SUPER BONUS COVERAGE

Four Wise Pronouncements

from Our Leaders


State v. Washington

Asking questions concerning

weapons or drugs

is not a search or

seizure and does not

violate the US or

Indiana Constitutions


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


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.


BANNISTER V. STATE

License plate checks

And stopping of a car


Class

Dismissed


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