Previewing Blawg Review #32
Hope v. Pelzer Back at Trial

Searching and Seizing Computers to Prove Violent Crimes?

In a case where someone is suspected of downloand child pornography, it would make perfect sense for prosecutors to seize the suspect's computers.  But when someone is accused of a crime of violence, should prosecutors be able to seize his computer?

Robert Petrick has been accused of murdering his wife.  Among the evidence supporting the prosecution's case:

Robert Petrick searched for the words "neck," "snap," "break" and "hold" on an Internet search engine before his wife died, according to prosecutors Wednesday.

More than two years after Janine Sutphen's body was discovered floating in a Raleigh lake, investigators continue to find new evidence on computers seized from Robert Petrick's home that prosecutors say support their arguments that Petrick killed his wife.

The Google search was the latest in recently discovered evidence found in the 100 million pages of content removed from computers.

I've done some research and haven't been able to figure out on what basis they seized his computer.  Allowing prosecutors to seize someone's home computer because he might have researched how to kill someone raises a lot of issues.  What if the police find other incriminating evidence?  Is that evidence in "plan view"?  Must computer specialist's limit their searches terms when searching someone's computer?  In other words, if prosecutors want to prove that Petrick snapped his wife's neck, must they limit their search to areas touching murdering one's wife, or can they also snoop around for child pornography?

Should, as a constitutional matter, prosecutors be allowed to seize every blue collar defendant's computer, on the theory that any computer user would likely search for ways to commit blue collar crimes?

If prosecutors are going to start searching and seizing computers in garden-variety cases, it might be smart to think of these issues now.  One of the best articles discussing these issues - which, again, now seem like they might start coming up in any street crime involving a defendant who owns a computer - is Searches and Seizures in Digital World.  Here is the abstract:

  The new frontier of the Fourth Amendment is the search and seizure of computer data. Created to regulate entering homes and seizing physical evidence, the Fourth Amendment's prohibition on unreasonable searches and seizures is now called on to regulate a very different process: retrieval of digital evidence from electronic storage devices. While obvious analogies exist between searching computers and searching physical spaces, important differences between them will force courts to rethink the basic meaning of the Fourth Amendment's key concepts. What does it mean to "search" computer data? When is computer data "seized"? When is a computer search or seizure "reasonable"?

This article offers a normative framework for applying the Fourth Amendment to searches of computer data. It begins by exploring the basic differences between physical searches of physical property and electronic searches of digital evidence. It then proposes an exposure theory of Fourth Amendment searches: any exposure of data to an output device such as a monitor should be a search of that data, and only that data. The exposure approach is then matched with a rule for computer seizures: while copying data should not be deemed a seizure of that data, searches of copies should be treated the same as searches of the original. In the final section, the article proposes a rethinking of the plain view exception in computer searches to reflect the new dynamic of digital evidence investigations. The plain view exception should be narrowed or even eliminated in digital evidence cases to ensure that digital warrants that are narrow in theory do not devolve into general warrants in practice. Tailoring the doctrine in light of the new realities of computer investigations will protect the function of existing Fourth Amendment rules in the new world of digital evidence.