Evidence: Search and Seizure

The Fourth Amendment to the U.S. Constitution reads as follows:

"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."

The lack of authorization in gathering the evidence is the commonest error that prevents electronic evidence from being admitted by the courts.It's important to understand how to obtain authorization to gather evidence. To refresh you understanding read: PROBABLE CAUSE.

The Fourth Amendment only applies to the government, but the ECPA prohibits anyone, including the government, from unlawfully accessing or intercepting electronic communications.

Read through the ECPA and note particularly § 2510(4), (5), (12) & (17) and § 2511.

Read the statement of facts for Little "Big" Grimley

(See resource: PGP For Absoute Beginners)
(See resource: How a keylogger works)

If you have not studied criminal procedure, read this excellent article: Search Warrants in an Era of Digital Evidence. It reviews the present law governing search and seizure and contends that the legal rules regulating the search warrant process for electronic evidence must be revised in light of the demands of digital and electronic evidence collection. Existing rules are premised on the one-step process of traditional searches and seizures: the police obtain a warrant to enter the place to be searched and retrieve the property named in the warrant.

Computer technologies tend to bifurcate the process into two steps. The failure of law to account for the two-stage process of computer searches and seizures has caused a great deal of doctrinal confusion, and makes it difficult (if not impossible) for the law to regulate the warrant process effectively. [PDF format--53 pages].

View the Power Point overview of The USA PATRIOT Act

Read Delayed Notice Search Warrants

Review Sample Language for Search Warrants and Accompanying Affidavits to Search and Seize Computers.

To Do: You are an Assistant U.S. Attorney for the Southern District of Ohio. You have been assigned to prepare the affidavit for a "sneak and peek" warrant request against Little "Big" Grimley [statement of facts]. Your FBI agent contact is Morris Flipistano and you may contact him by e-mail if you have any questions: flipistano@edusites.net

Prepare the affidavit and submit by e-mail attachment to jlcarrol@samford.edu by Sunday, October 30, 2005. Use the required subject line = affidavit