When handling a case where a crime is alleged to have been committed using a computer, it is important to first see if the evidence obtained by the government can be suppressed. In doing this, there are several issues that should be analyzed:
1. What acts preceded obtaining a warrant? Remember to not just look for a warrant but also at what was done to get the warrant. See 18 USC 2703 Required Disclosure of Customer Communications or Records. Part b states the government “may require remote computing service to disclose contents of electronic communications with without notice with a warrant or with prior notice with subpoena or court order and in certain situations with delayed notice under 2705.”
2. Does a summons which comply with 18 U.S.C. Sec. 2703 ( c )? If it does not, would the exclusionary rule apply since it is not set out in the statute? Does it matter if there is no expectation of privacy in the info, e.g. ISP account info? Part 2 states that the government “may use to compel Internet Service Providers to identify users of IP addresses with only administrative subpoena and no notice to the customer.”
3. Did the defendant have a reasonable expectations of privacy? Does a person have a reasonable expectation of privacy when using a file sharing program? Federal courts have uniformly held that a person has no expectation of privacy in ISP account information. State v. Reid, 914 A.2d 310 (N.J. Sup. Ct. 2007) (compiling cases; No case from Fifth Circuit, however). See also U.S. v. German ,(C.A.5 (La.)), suppression remedy was available for violation of pen-trap statute. Suppression remedy was available for violation of pen-trap statute. Non-consented surveillance of a pen register is an insufficient invasion of privacy to implicate the Fourth Amendment and there was no statutory provision empowering court to suppress evidence collected in violation of the statute.
4. Did the government have probable cause to seize the evidence and/or arrest the defendant? See Perez v. U.S. ,(U.S.) Criminal Justice – Probable cause to search in light of fact that multiple people use same address — Certiorari Denied. In denying certiorari, the United States Supreme Court let stand a Fifth Circuit decision that the fact that an address listed in a warrant authorizing a search of a defendant’s residence for child pornography had more than one occupancy unit did not render the warrant invalid. The Court of Appeals noted that the officers reasonably believed that the address had only one resident at the time the warrant was issued, as they performed a public records check, a utilities company check, and an internet white pages check, all of which indicated that the address was occupied by the defendant and no one else. The petition for certiorari presented the question whether the fact that illegal activity emanates from an Internet Protocol (IP) address establishes probable cause to search the property of the registered owner of that IP address when multiple people use the same IP address. (Case below: U.S. v. Perez, 484 F.3d 735 (C.A.5-Tex. 2007).) (2007 WL 2455131)
4a. Probable Cause – Particularity. Did the government use sufficient detail in drafting the search warrant or was it overly broad? See U.S. v. Adjani, 452 F.3d 1140 (Ninth Circuit). Good discussion of considerations in determining whether warrant is sufficiently particular and not overly broad. See also U.S. v. Layne, 43 F.3d 127, 132 – 133 (5th Cir.(Tex.) Jan 11, 1995). Warrant for search of computer found not to be overly broad. But see U.S. v. Kimbrough, 69 F.3d 723, 727 -729 (5th Cir.(Tex.) Nov 09, 1995) (NO. 94-10088), rehearing denied (Dec 28, 1995). Blatant disregard of the language of the search warrant can render an otherwise legal search illegal.
Tags: Austin Criminal Defense, Austin Criminal Lawyer, child pornography, computer crimes, federal crimes
