How do police obtain a search warrant
If your computer was illegally taken, then you can file a motion with the court to have it returned. They may also attempt to keep the computer permanently, a legal process known as forfeiture, but you can challenge forfeiture in court. There is less protection against a search at a place of employment.
Generally, you have some Fourth Amendment protection in your office or workspace. But the extent of Fourth Amendment protection depends on the physical details of your work environment, as well as any employer policies. For example, the police will have difficulty justifying a warrantless search of a private office with doors and a lock and a private computer that you have exclusive access to. On the other hand, if you share a computer with other co-workers, you will have a weaker expectation of privacy in that computer, and thus less Fourth Amendment protection.
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Electronic Frontier Foundation. Know Your Rights. By Hanni Fakhoury and Nadia Kayyali Your computer, phone, and other digital devices hold vast amounts of personal information about you and your family. The police have a warrant. Now what? Overview: When can the police search my devices? Ask to see the warrant. The warrant limits what the police can do. Protestors explains your rights, and how best to protect the data on your phone, at protests.
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What is a search warrant and how do police apply for them?
Arnold , F. Ickes , F. Almeida-Sanchez v. United States , U. Romm , F. Roberts , F. Cotterman , F. Federal Rule of Criminal Procedure 41 f 1 C. Wilson v. Arkansas , U. Federal Rule of Criminal Procedure 41 e 2 A ii. Marron v. Andresen v. Maryland , U. Mann , F.
City of Fort Wayne , F. Horton v. Walser , F. Carey , F. Compare 18 U. Hill , F. Federal Rule of Criminal Procedure 41 g. See 18 U. Mancusi v. DeForte , U. Ziegler, F. Schowengerdt v. United States , F. Ziegler , F. City of Ontario v. Quon , U. Ortega , U. Protect digital privacy and free expression. In doing so, you should ask the following questions:. Does the company or complainant own the computer? If so, permission can be given to search the machine. Does the company have a legitimate reason for searching the computer? If not, the employee using the computer could have reason for civil litigation.
Have employees been warned that the company has the right to search the machine? As we'll discuss later in this chapter, by warning employees that computers may be searched at any time, the employee has little to no recourse if anything has been found on his or her machine. If there are no legal grounds to search the computer without a warrant, statements and any documented evidence pertaining to the incident should be collected.
Statements should include as many details as possible, providing a timeline of when events took place and what occurred.
Search warrant return
Statements should be gathered from anyone associated with the incident, and this should be done as soon as possible so that memories of the event aren't diluted over time. Gathering statements in this manner provides information that can be used to obtain a search warrant, and can be used as evidence later on if the case goes to trial.
A search warrant is a legal document that permits members of law enforcement to search a specific location for evidence related to a criminal investigation, and possibly seize that evidence so it can be analyzed and possibly used in court. For the warrant to be legal, it must be signed by a judge or magistrate, such as a Justice of the Peace or another type of judicial officer. This requires law enforcement officials to provide a sworn statement in which the location to be searched is identified and which may list the type of property being sought.
The key point of this process is to protect the rights of the individual and provide reasonable grounds for why permission should be given to invade a person's privacy and property. Many countries use search warrants to protect the privacy of its citizens by requiring authorities prove the necessity for the search and seizure of a person's property.
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An example of legislation that's used to prevent unreasonable searches and seizures of property is the Fourth Amendment of the United States Constitution, which states:. 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.
This places the burden of proof on the government so investigations aren't conducted in an authoritarian or oppressive manner. The warrant can only be executed within a set amount of time generally three days , so if it wasn't a search warrant wasn't used in that time, a new one would need to be obtained.
Also, an officer may only search areas outlined in the court order, and generally cannot seize items not included in the document. For example, if the warrant specified a person's home could be searched, the police could not search other properties such as a cabin also owned by the person. Despite appearances at times, legislation is often constructed from common sense needs and well thought out arguments, balancing the needs of society against the government's ability to manage its citizens.
For law enforcement, there are a number of exceptions regarding when a search warrant is needed, although few apply to computer forensics.
Search Warrant Requirements
For example, an officer can frisk a suspect, checking his clothes for weapons or contraband, but there is no way this search would include an examination of the person's computer. The need for a search warrant is also excluded when consent is given by the owner, or by an authorized person in charge of the area or item being searched. Similarly, the senior staff of a company or the manager of an IT department could give permission to have servers and workstations in a company examined.
For example, on a college campus, a student in residence might be able to give permission to search the room he occupies, but wouldn't be able to give permission to search his roommate's computer. Similarly, a parent would be able to give permission to search a family computer, but may not have the authority to permit a search of an adult child's personal computer. Because a search conducted on a computer without a warrant or proper permission could make any evidence collected inadmissible in court, it's vital to determine who can give permission before seizing or examining a computer.
Because of this, evidence collected prior to involving law enforcement is less vulnerable to being excluded in court. If the IT staff of a company acquired files from a server or workstation before calling the police, it would probably be admitted as evidence in a trial, even though the same actions taken by law enforcement without permission or a warrant could make it inadmissible. Failing to follow them may result in lost or unusable evidence. The procedures outlined in this section will help preserve evidence and ensure it is considered admissible in court.
If so, then permission can be given to search the machine. If there are no legal grounds to search the computer without a warrant, then statements and any documented evidence pertaining to the incident should be collected. As seen in Exercise 3. Statements should be gathered from anyone associated with the incident, and this should be done as soon as possible while memories of the event are still fresh. Gathering statements in this manner provides information that can be used to obtain a search warrant and can be used as evidence later if the case goes to trial.
Statements are required to obtain search warrants so a judge or magistrate can evaluate the reasons a search warrant has been requested, and determine whether one should be issued based on the merit of existing evidence and observations. To write a statement, follow these steps: 1. Ensure that each page and line of the statement is numbered. This makes it easier to refer to in court or when discussing the contents of the document.
Begin the statement by stating who you are and that you are stating what follows in the document. If you are part of the investigation, you should also include your position and employment that is, whether you are part of the company where the investigation took place, a member of the police, and so on. Include any additional information that provides credibility to your statement such as providing information on any certifications or other qualifications you might have.
This may indicate whether you could be used later as an expert witness, and should be included in the opening or first couple of paragraphs of the statement. After introducing who you are, begin relating, in chronological order, the events that have occurred, stating the dates and times where available. Upon checking the mail server, I saw that a significant amount of e-mail was being sent to e-mail addresses on the Internet.
Provide as much detail as possible, inclusive to references to logs or other evidence that can be included with the statement. Include only facts, not unfounded speculation of what you personally believed to have occurred and why. At all times, try to relay the events in plain English, explaining any technical terms used. Margaret Phipps Brown, in Digital Forensics , The Fourth Amendment requires that search warrants be based upon probable cause and that search warrants particularly describe the evidence being sought and the premises to be searched.
In general, applications for search warrants in digital data cases are very specific and longer than other search warrant applications United States Department of Justice, Law in this area is far from settled. Courts have wrestled with questions of how much explanation is necessary to justify a computer search and how much specificity is required to authorize searching a computer once a search warrant has been obtained.
Probable cause to search a computer is established when there is reason to believe that a suspect is in possession of incriminating evidence that can be found on a computer and that the computer is likely to be found in a particular location United States Department of Justice, Computer search warrants authorize law enforcement officials to seize a computer and search it offsite United States v. Schandl , When a search warrant authorized police to search for records or documents, the search warrant will generally cover seizure of a computer from the location of the search People v.
Gall , Once the computer has been seized, it is advisable to obtain a separate search warrant authorizing search of the computer. It is good practice for a computer search warrant to specify not only computers, but other storage media that might contain evidence United States Department of Justice, A search warrant authorizing the search of a computer generally authorizes law enforcement officials to search all of the data on the computer, since evidence can be stored anywhere on a computer United States v.
Williams , The rapidly increasing capacity of personal computers and privacy or confidentiality of data have called into question whether restrictions should be placed on how extensive a computer search can be. Possible accommodation of these concerns includes ex ante restrictions placed by the issuing judge on the search or appointment of special master to review evidence prior to its release to law enforcement for use in criminal cases Kerr, Search warrants must be executed promptly, usually within 10 days of issuance Fed, in press ; Fed.
This requirement applies to seizure of the computer, not the physical search of computer data. During the collection of storage media at a search warrant related to a gang shooting, a smartphone is seized. There are several computer systems to be examined and only one forensic examiner. Where do you start? During a search warrant executed at a residence, two iPhones were seized along with other items. An analysis of the iPhones recovered sexually explicit chat messages with juveniles. Coupled with child pornography discovered on seized computers, investigators continued the investigation to obtain even more evidence of these crimes, including postings on Craigslist that were pertinent to the case.
Investigative Tips: The forensic examiner starts the first forensic examination first. Ideally, the first examination is the one that cries for attention as a priority. In one case, this could be the laptop. In another case, it may be the smartphone or a flash drive.
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All things being equal, the smartphone may be a good piece of evidence to search your examinations. As in the case in point above, investigators not only examined the iPhones, but requested the call detail records which helped to identify victims. The analysis of mobile devices such as smartphones can yield a wealth of evidence and much of that evidence can place a suspect at any one location that has been either logged by GPS on the phone or through cell tower records.
Being able to create a historical location and movement of a suspect helps prove or disprove alibis. It also helps to potentially identify locations where additional evidence may exist. Although smartphones capable of geolocation through GPS logging or by embedding EXIF data in photos are incredible items of evidence for suspect locations, laptops may contain some of the same location information, as they are almost as portable as a smartphone. As shown throughout this book, the combination of investigative techniques and forensic processes helps place the suspect at a location and behind a keyboard, but these same processes help find clues and lead to additional evidence and victim identification.
Of course, there is always the question of how much effort to place in an investigation when there is enough evidence to prove an allegation in a legal hearing, but when unidentified victims exist, sometimes you should consider going the extra ten yards. The victims will appreciate your effort. Gerald L. Kovacich, Dr. No arrests have been made in connection with the searches, which were carried out in recent days….
LexisNexis disclosed in March that hackers had commandeered a database and gained access to the personal files of as many as 32, people. The company has since increased its estimate of the people affected to , The breaches were uncovered during a review and integration of the systems of Seisint Inc. Seisint's databases store millions of personal records including individuals' addresses and social security numbers.
Customers include police and legal professionals and public and private sector organizations. Information accessed included names, addresses, social security and driver's license numbers, but not credit history, medical records, or financial information, corporate parent Reed Elsevier Group PLC said in a statement. It was the second such infiltration at a large database provider in recent months. Rival ChoicePoint Inc.
Commentary: This case is included to give you some idea of what investigators are attempting to do in such cases of information thefts. The number of searches at the various locations shows how widespread such crimes can be. Law enforcement investigators will most likely need a search warrant to obtain evidence from a personally owned computer unless it has been seized at a crime scene under pertinent authority.
In exceptional circumstances, it is possible that the system owner may indulge a request for a consent to search, but it's not very likely that any criminal or anyone involved with any serious offense will be so cooperative. In the private sector, obtaining physical access to a target computer may be simple.
However, the investigative unit manager must ensure that the company policy framework supports a legal search so that any evidence that is discovered can be used. Typically, employee handbooks and other policy pronouncements should contain language that explicitly states that the company owns the computers used by the staff and the data they contain. Any management communication should be phrased in terms that make it clear that the organization reserves the right to inspect the computer at any time for any legitimate business purpose, including investigating known or suspected violations of company policies or relevant laws.
The language should also advise employees that they have no reasonable expectation of privacy in using the machine and that if they choose to use the computer for personal communications or other purposes, they do so at their own risk. If the company does not have such a policy and procedure, it is possible that an employee might be able to sue the organization for violation of privacy, especially in states like California, where there is an explicit state constitutional right to privacy. In any event, consulting with corporate counsel or other company attorney prior to initiating a search is an important element of every investigation.
Is there a specific time period in which a search is most likely to be productive? How long should the investigators wait before informing the suspect?
There are several well-known exceptions to the search warrant requirement. A warrantless search is valid with consent as long as the person giving the consent is authorized and the consent is truly voluntary. The voluntariness of the consent is judged on the totality of the circumstances. The Supreme Court recognized age, education, intelligence, and the physical and mental condition of the person giving consent as important factors to consider. Other considerations would be whether the person was under arrest at the time of consent and whether the person had been advised of his right to refuse consent.
If the validity of the search relies on consent, the burden is on the government to prove it was indeed given voluntarily. Consent may be revoked at anytime. The search must cease immediately when the consent is withdrawn. So what happens if the suspect has second thoughts after his computer has been collected and taken to the lab for processing? The same standard applies almost. The search must stop when they revoke their consent.
That said, courts have said that this does NOT apply to forensic clones. In other words, although the original must be returned, any clones that have been made do not. Defendants do not have a reasonable expectation of privacy with a forensic clone United States v. Megahed, For this very reason, cloning a drive sooner rather than later is a very wise move. The scope of a consent search is sometimes at issue in a criminal case.
If they give you consent to search the house, does that include closed containers and computers? Well, that depends on the particular details of the situation. What would a reasonable person have understood the scope to be under those conditions? The party granting consent may set forth restrictions on the search.
Should that be the case, officers must abide with this request. To do otherwise could very well result in the suppression of any evidence recovered. In searches that hinge on consent, it often comes down to one side's word over the other. What exactly was said, how it was said, and what the suspect understood at the time could all be scrutinized.
A well-crafted consent-to-search form will go a long way in countering any attack on the search. The form should include details specifically relating to digital evidence. The form should seek permission to search not just computers but any storage media including cell phones, manuals, printers, and more. The form should ask for permission to take these items from the location for offsite examination Executive Office for United States Attorneys, In the end, it's important to remember that consent searches can be highly nuanced and heavily dependent on the facts or circumstances that arise during that specific incident.
While searching without a warrant is sometimes a necessity, the best practice is to get a search warrant whenever possible. Your case will rest on much more solid ground with a warrant than without. Third parties can sometimes consent to the search of private property. Roommates, spouses, and parents are just a few of the examples. Normally, if a device is shared, all parties have the authority to provide consent to search its common areas. In this situation, none of them would have a reasonable expectation of privacy in the common areas since it's shared with other people.
The notion of common areas is significant. Areas such as those that are password protected would not qualify as a common area. The third party would likely not have the authority to consent to its search. However, if the suspect has shared the password with the third party, then this constraint no longer applies. The suspect's reasonable expectation of privacy has been greatly diminished.