The document describes a hypothetical nightmare case involving the search of two computers seized during the execution of a drug warrant. Various issues arose during the searches of the computers, including finding child pornography, accessing password protected files and websites, and discovering highly personal files. Both defendants filed motions to suppress evidence and civil actions alleging privacy violations. The judge granted the motions and found violations of the 4th Amendment, Privacy Protection Act, and Electronic Communications Privacy Act, dismissing all charges and awarding substantial damages. Key issues discussed include preparing search warrants, executing searches, post-search procedures, and relevant federal statutes governing electronic records.

1. Computer Searches Abigail Abraham Assistant State Attorney Cook County, Illinois Ivan Orton Sr. Deputy Prosecuting Attorney King County, Washington

2. You Remember Law School Exams, Don’t You?

3. You sign off on a routine drug warrant. Undercover says he bought drugs at the house you want to search. The warrant authorizes the seizure of drugs, records of drug transactions and evidence of dominion and control

4. When search is executed of multi-room house, drugs are found in one bedroom. One computer is found in the living room and a second is found in a second bedroom. There is a small quantity of marijuana in the first bedroom.

5. Upon your advice, the police seize the computers and the drugs and turn the computers over to private computer experts for examination. Because the experts are backed up with other computers, they don’t get to these two computers for two weeks.

11. Possession with intent charges are filed against both occupants of the house. Sexual Exploitation of a Minor charges are filed against the owner of the house.

13. Two days later the daughter of the tenant, whose emotional troubles were presented in the media in coverage of this case, commits suicide .

14. The defense attorneys move to suppress all evidence found on both computers. In a separate civil action they bring an action for violation of the Privacy Protection Act, and the Electronic Communications Privacy Act.

20. Then you wake up in a cold sweat. The detective didn’t bring that warrant to you yesterday. He’s bringing it to you tomorrow. The rest of this presentation will be spent trying to help you avoid the mistakes made in this nightmare case.

21. Disclaimer: The Judge’s rulings in this example are not necessarily accurate rulings.

22. Searching and Seizing Electronic Evidence

23. Whose Computer

24. Role of Computer in Crime

25. Our Primary Focus Today Suspect’s Computer where computer is a container of evidence

26. We Will Also Examine the laws governing access to Third Party Computers where computer is a container of evidence

28. Rilling’s Log Files

30. Accidental death search

31. Accidental death search

32. Poison search

33. Poison search

61. What are you Searching For? INFORMATION

62. Describe Evidence in Terms of Specific Records or Information

65. Or, More Specifically The terms “records” and “information” include those items in whatever form and by whatever means they have been created or stored, including any electrical, electronic, or magnetic form (such as any information on an electronic or magnetic storage device, including floppy diskettes, hard disks, ZIP disks, CD-ROMs, optical discs, backup tapes, printer buffers, smart cards, memory calculators, pagers, personal digital assistants such as Palm Pilot computers, as well as printouts or readouts from any magnetic storage device); any handmade form (such as writing, drawing, painting); any mechanical form (such as printing or typing_: and any photographic form (such as microfilm, microfiche, prints, slides, negatives, videotapes, motion pictures, photocopies).

66. Remember: You Can Defend the Search of a Computer Where the Warrant did not Specify Computer Records

103. The Big Picture

109. The Big Picture

114. The Big Picture

127. The Big Picture

129. Subscriber / Account Information

139. Outside The United States - an Example United States v. Vassili Gorschkov

150. Anything Illegal? Evidence Admissible?

165. You Don’t Want to be the Prosecutor when . . .