Computer Searches and Seizures: Challenges for Investigators

Article excerpt

An informant tells a detective preparing an affidavit for a warrant to search a drug trafficker's home that the trafficker is a "computer wiz" who keeps all financial records on a "50 megahertz 486." To trace the drug trafficking proceeds for forfeiture purposes, the detective wishes to seize the financial records.

A second officer is investigating a crime in which a computer virus was introduced into a university's mainframe computer, shutting down the school's computer operations for 48 hours. As a result of the officer's investigation, a computer science student becomes a prime suspect. In order to search the student's computer "account" on the school's mainframe for the virus' computer code, the officer seeks a search warrant. He also suspects the "account" to contain an article that the student wrote on computer viruses.

These officers, in seeking to search for computerized information, must contend with both statutory and constitutional restraints that limit police authority. This article examines the effect of these legal restraints on searches for computers and computerized information and suggests strategies to ensure the admissibility of evidence detected.

THE PRIVACY PROTECTION ACT OF 1980

In 1980, Congress enacted a statute to give special protection to documentary materials prepared or gathered for dissemination to the public.(1) The statute requires the government to use a subpoena, rather than a search warrant, to acquire documentary materials, unless one of the statute's exceptions that permits the use of a search warrant applies.(2)

Although the statute specifically provides that its violation is not grounds to suppress evidence,(3) it does provide a civil remedy in Federal court against either the government entity or individual officers involved in the search where a search warrant is used contrary to its provisions.(4)

Because personal computers are used for word processing and desktop publishing with increasing frequency, officers contemplating use of a warrant to search for computerized information should consider the potential application of this statute.(5) When officers have reason to believe that the computer stores information created or gathered for public dissemination, they should make sure that one of the exceptions to the act's prohibitions applies before a search warrant is used.

The exception most likely applicable permits the use of a search warrant when there is probable cause to believe the person possessing the materials sought "has committed or is committing a criminal offense to which the materials relate...."(6) If none of the act's exceptions apply, a subpoena should be used to acquire the evidence.

DRAFTING THE APPLICATION AND SEARCH WARRANT

The fourth amendment protects the right of the people to be "secure in their persons, houses, papers, and effects" against unreasonable government intrusion.(7) This protection extends to computers, which are effects, and to information processed and stored by computers, which can be categorized as papers. The constitutional demand on the officer seeking to search for and seize a person's computer or computerized information is that the search and seizure be reasonable.(8)

"Reasonableness" is generally best achieved with a valid search warrant.(9) This is especially true when business or residential premises, the most likely locations for computers, must be entered to perform the search.(10)

The fourth amendment sets forth certain procedural requirements that must be met for a valid warrant to be issued. There must be a showing of probable cause, supported by oath or affirmation, and the warrant must particularly describe the place to be searched and the persons or things to be seized.(11) The requirement of oath or affirmation raises no special problems where computer searches are concerned; however, the probable cause and particularity requirements pose unique problems where computers are the search target. …