Electronic monitoring and the search and seizure of electronic data, such as cell phones and computers, have become a hot topic in recent years. The laws surrounding when – and how – electronic data can be monitored, searched and seized is so complex, the federal government has put forth a guide explaining the process that police and federal agents must follow for a search and seizure to be legal.
The federal guide is long and complex. In general, there are two ways police and federal agents can seize and search computers. The first is with a warrant. The second is without a warrant.
With A Warrant
To get a warrant, police or federal agents must present the court with probable cause that the computer is either being used to commit a crime, or contains evidence of a crime. Probable cause can be established in many ways, such as:
- Your computer’s IP address has been used to commit a crime.
- An online account belonging to you has been used in the commission of a crime. For example, an email account or bank account registered with a child pornography service.
- Non-Internet activity has led police to believe your computer houses or is being used to commit a crime. For example, computer files showing embezzlement.
Computers house many items. In addition to files and folders, computers also house evidence of wholly or partially deleted files and other metadata, including information regarding when files were created and edited. Evidence is also stored in browsers, email readers, chats and other programs, as well as records of Internet use. Because computers house so much data, warrants must clearly lay out the types of information to be searched, not just the computer to be searched.
If a warrant is granted, you can expect your computer to be seized and searched offsite. Police are also NOT required to notify you of a search and seizure, or present the warrant to you, at the time of the search.
Without A Warrant
Police and federal agents do not always have to have a warrant to seize and search your computer, cell phone or other electronic records. In the following circumstances, a warrant is not necessary:
- If you or a third party who has control over the computer gives consent to a search
- If police have reason to believe the evidence will be destroyed
- If incriminating images or data are in “plain view” during an arrest or other valid search
- If you are crossing the boarder
- If you are on probation or parole
Courts disagree on whether searches incident to an arrest, or inventory searches, can include the search of cell phone data and computer data.
If your computer has been seized by federal agents, the best thing you can do for yourself is to get legal help. An experienced lawyer will know whether your Fourth Amendment right to privacy is being violated.