5

Another theoretical question just out of curiosity.

Lets say that an officer has gotten a warrant to take/search an individuals laptop in the United States and comes to serve it. At the moment the officer appears to serve the warrant the individual has the laptop on (or in hibernation mode) and with incriminating data being viewed. If the laptop was taken as-is the incriminating data could be viewed when taken out of hibernate mode to be inspected later, but the data could not be retrieved if the computer was turned off completely (he's using an incognito browser or encrypted drive etc to cover his tracks). Does the person being searched have the right to demand the computer be turned off before it is taken on the grounds that the warrant is only for the computer, not for the activity he is currently involved in?

Assuming the question is yes then as a follow up question what could the individual do if the computer was not turned off and the state tries to take him to trial using evidence that was only accessible because the device was not deactivated? could he get the evidence dismissed? Would he have to have requested, and been denied, that the computer be deactivated before confiscation for the evidence to be dismissed, or could he retroactively point out it should have been?

In short, could I justify police knowing someone is guilty because of content he had viewed in a private browser at the moment the computer was confiscated, but being unable to prosecute because it isn't legally viable?

  • 3
    I'm no lawyer, but I'm guessing that the officer would be allowed to take the computer in the state in which he found it. Maybe an analogy would be that fingerprints on a gun are admissible even though the warrant didn't cover fingerprints, only weapons. – James Jan 12 '17 at 14:32
  • 2
    Yeah, it seems deeply unlikely that the subject would have any such right. What would be the reason for a legal distinction between "turn the device off" and "wipe all data", "drop encryption keys", "brick the device", etc? And it's pretty absurd to imagine there would be a right to wipe all data before your device is seized - that would defeat the whole purpose of the seizure. – Nate Eldredge Jan 12 '17 at 14:38
6

Does the person being searched have the right to demand the computer be turned off before it is taken on the grounds that the warrant is only for the computer, not for the activity he is currently involved in?

No. A warrant will often specify that both information (which they have a reasonable suspicion is on the computer) and the computer itself (as contraband) are in the scope of the warrant. Even if it only specified specific information as the target, they can seize the computer that it may be on.

The seizure takes place as-is. You don't get to tidy anything up.

Things that the officers see while seizing the device or upon waking it from hibernation mode would be admissible under the "plain view" doctrine (or even just simply within the scope of the warrant, if what is on the screen is the information they're looking for).

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.