University:
Boston University
Course:
LAW AM 700 | Intro to American Law
Academic year:

2022
Views:

395

Pages:

16
Author:

MoonlitMarauder

TITLE III OF THE ECPA  Addresses pen registers and trace and trap devices installed by law enforcement under a warrant. SPECIAL ISSUES IN COMPUTER SEARCHES  How much data should you collect?  Just exactly what does it mean to “search” a computer?  Separate warrants are needed for cell phones, pagers, thumb drives CASE LAW PERTAINING TO CELL PHONE SEARCHES  Riley v. California and U.S. v. Wurie, 573 U.S. ___ (2014): The Court has held that a warrantless search of a person and the immediate area may be carried out pursuant to a lawful arrest. In this pair of cases, the Court ruled that it was illegal to conduct a warrantless search of cell phones. Police must get a warrant to search a suspect’s cellphone.  U.S. v. Carpenter, 585 U.S. ___ (2018): The Court held that a person has an expectation of privacy in his cell phone records that indicate his physical location. Law enforcement must now obtain a warrant to get third-party cell phone data. Before this, law enforcement could request any and all cell phone records from a provider without a warrant. The were considered property of the provider. The cell phone owner had no privacy expectation in them. COLLEGES  Private colleges will be treated as private employers.  Public colleges will be considered a state entity.  For purposes of certain laws, particularly drug laws, campuses are considered federal property. COLLEGE SEARCHES  As an employer, a college can conduct some searches of employees’ workspaces, computers and cell phones. These can be done either as a matter of policy or if there is probable cause.  As a school, operating under the theory of in loco parentis, it many conduct certain searches of a student’s room and electronics. These can be done either as a matter of policy or if there is probable cause. PRIVATE EMPLOYER SEARCHES  Can you search your employees’ computers?  18 U.S.C. §§ 2701 - 2712 – Stored Communications Act   Those storing electronic communications shall not divulge them without authorization or other lawful request 18 U.S.C. §§ 2510 – 2522 – Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited  Electronic communications cannot be intercepted or disclosed without a warrant PARAMETERS OF SEARCH  Search must be work related – cannot be done to look for wrongdoing  Search must be justified and permissible in scope  *Note Bene: A government employer may not consent to a law enforcement search that he could not conduct himself EMPLOYER SEARCHES continued  United States v. Ziegler, 474 F.3d 1184 (__ Cir. 2007) – an employer could consent to a search of a work-issued computer  United States v. Buettner-Janusch, 646 F.2d 759 (2d Cir.1981) – a co-worker who shares space may consent to a search of the shared space  United States v. Simons, 206 F.3d 392 (4th Cir. 2000) – if an employer has a policy stating that files will be subject to periodic searches then employee should expect those searches PUBLIC EMPLOYER SEARCHES  Can your employer search your workspace?  It depends.  Are the areas to be searched “public?” This means do others have access to it.  Does the employer retain control over the computer, files, etc?  O’Connor v. Ortega, 480 U.S. 709 (1987): While the employee may have a reasonable expectation in his workspace, employers may conduct searches if they are work-related and justified.  City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010): Narrowly decided on the issue that an employer can perform warrantless searches texts on employer-issued pagers. CAMPUS POLICE SEARCHES  Campus Police are special state police. Campus is their jurisdiction.  Commonwealth v. Smeaton, 465 Mass. 752 (2013) SCHOOL SEARCHES (in general)  New Jersey v. T.L.O., 469 U.S. 325 (1985): In high school settings, the same prohibitions that the 4th Amendment places on law enforcement are placed on school officials operating under color of state statute.  This theory can be expanded to include colleges and searches of dorm rooms and backpacks. DORM ROOMS  General searches of dorm rooms are allowed under the same circumstances as an apartment.   In addition, colleges may have a policy stating that rooms will be periodically searched for health and safety reasons.   But see State v. Houvener, 145 Wash. App. 408, 186 P.3d 370 (2008) (privacy protections for dorm corridors/hallways). Search must be limited to health and safety concerns. See Platteville Area Apartment v. City of Platteville, 19 F.3d 574, 579 (7th Cir. 1999) (“if you are looking for an adult elephant, searching for it in a chest of drawers is not reasonable.”) See also Arizona v. Hicks, 480 U.S. 321, 325 (1987) (police searching for shooter and weapons could not turn over electronic device and record its serial number). Medlock v. Indiana University, 783 F.3d 867 ( __ Cir. 2013): Resident advisors may search a dorm room with notice. This does not constitute an illegal search. APARTMENT SEARCHES  Generally, if there are two or more roommates, one roommate can consent to a search of common areas of an apartment or house. BUT not to private bedroom spaces or closed containers.  HOWEVER, if one roommate objects, the police must get a warrant before searching. (Georgia v. Randolph, 547 U.S. 103 (2006); Fernandez v. Cal., 571 U.S. ___ (2017)) AUTOMOBILE SEARCHES  Carroll v. U.S. (1925) – search of automobile without warrant permissible on basis of probable cause  California v. Acevedo (1991) – search of closed container in car permissible if there is probable cause  Other factors:  Cars are mobile  Lower expectation of privacy in car EVIDENTIARY ISSUES  Investigative problems:  Expensive and time consuming  Make sure the searches are legal CONCLUSION  Electronic search law is constantly changing  When in doubt, consult a lawyer

To Search and Seize Part 2

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