To Search and Seize

TO SEARCH AND SEIZE OBJECTIVES  Introduce basic concepts of search and seizure  Present road search and seizure principles that apply to all searches and seizures.  Introduce laws and cases important to search and seizure  Focus on issues for colleges and universities  Computers and Computer-Related Offenses  Searches of students and of employees THE FOURTH AMENDMENT  Amendment IV  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. PROBABLE CAUSE  What is probable cause?  Reasonable basis to believe a crime has been committed  Warrant Searches: Obtained by law enforcement personnel upon presentation of probable cause to a judge or magistrate  Warrantless Searches:  Plain view: The authorities don’t need to shade their eyes from bvious contraband visible to the public.  Exigent circumstances: There is an immediate need to act and no time to get a warrant before the evidence will be lost – the aftermath of a crime, an obvious threat to safety, etc.  Terry Stop & Frisk: Law enforcement stops someone to question and has reasonable suspicion that the person has a weapon or has just or is about to engage in criminal conduct.  Consent searches: Law enforcement asks permission to search someone or somewhere and a person who has control of the object or place agrees.  Private searches by employers or schools (must still be based on reasonable suspicion. PRIVACY IN SEARCHES  Why is the idea of privacy important in searches?  The Supreme Court has ruled that people have an expectation of privacy in certain areas of their lives. Both private searches such as those done by an employer or public searches such as those done by law enforcement must respect this privacy.  The searchers, whether private or public, must justify their intrusion of a person’s privacy. This goes back to probable cause.  Scope of the privacy right depends on location  Protection of the physical person and their personal property  Home/Dorm v. Office v. Shared Communal Spaces v. Public Spaces  Automobile Exception WHAT IS PRIVACY? WHERE DO WE FIND IT?  Oddly enough, it is not mentioned in the Constitution.  Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.  Applied to the states through the Fourteenth Amendment.  Amendment XIV  Section 1.  All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. REASONABLE EXPECTATION OF PRIVACY  Olmstead v. U.S. (1928) – Olmstead’s privacy was not violated – wiretapping was done on “public” property  Katz v. U.S. (1967) – When does a person have a reasonable expectation of privacy?  Kyllo v. U.S. established a two-prong test to determine whether or not there is a reasonable expectation of privacy:  Two prong test:  Does the person believe that his words/actions would be private?  Is the subjective privacy an expectation that society is prepared to recognize as reasonable? COMPUTER FRAUD AND ABUSE ACT  18 U.S.C. § 1030 defines computer fraud and abuse  (1) as knowingly gaining unauthorized access to a computer or exceeding authorized access to a computer;  (2) intentionally gaining unauthorized access to a computer or exceeding authorized access to a computer and thereby   Accesses financial information  Information from or on any U.S. government agency or department  Accesses information on a protected computer (3) intentionally and without authorization accesses a nonpublic computer of the U.S. government; CFAA, cont’d   (4) knowingly and with intent to defraud accesses or exceeds authorized access to a protected computer;  (5)  (A)knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;  (B)intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or  (C)intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss. CFAA, cont’d  (6) knowingly and with intent to defraud traffics in any password or similar information through which a computer may be accessed without authorization, if— (A)such trafficking affects interstate or foreign commerce; or   (B)such computer is used by or for the Government of the United States; (7) with intent to extort from any person any money or other thing of value, transmits in interstate or foreign commerce any communication containing any—  (A) threat to cause damage to a protected computer;  (B) threat to obtain information from a protected computer without authorization or in excess of authorization or to impair the confidentiality of information obtained from a protected computer without authorization or by exceeding authorized access; or  (C) demand or request for money or other thing of value in relation to damage to a protected computer, where such damage was caused to facilitate the extortion; WHAT IS A COMPUTER?  18 U.S.C. §1030 Fraud and related activity in connection with computers  (e)As used in this section—  (1)the term “computer” means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device;  U.S. v. Kramer, 631 F. 3d 900 (2011) ELECTRONIC COMMUNICATIONS PRIVACY ACT (ECPA)  Title I – Wiretap Act: prohibits the intentional actual or attempted interception, use, disclosure, or "procure[ment] [of] any other person to intercept or endeavor to intercept any wire, oral, or electronic communication." Title I also prohibits the use of illegally obtained communications as evidence. 18 U.S.C. § 2515.  Exceptions. [O]perators and service providers for uses "in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service" and for "persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act (FISA) of 1978." 18 U.S.C. § 2511. It provides procedures for Federal, State, and other government officers to obtain judicial authorization for intercepting such communications, and regulates the use and disclosure of information obtained through authorized wiretapping. 18 U.S.C. § 2516-18. A judge may issue a warrant authorizing interception of communications for up to 30 days upon a showing of probable cause that the interception will reveal evidence that an individual is committing, has committed, or is about to commit a "particular offense" listed in § 2516. 18 U.S.C. § 2518. STORED COMMUNICATIONS ACT Title II of the ECPA  18 USC §§ 2701 – 2712 –  Criminal liability applies to those who:  Intentionally access without authorization a facility through which an electronic communication service is provided; or  Intentionally exceed an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system