The Fourth Amendment in the U.S. Constitution that address search and seizure limits for police and other law enforcement. The amendment basically states that a person’s home, business, or other property cannot be searched by police looking for evidence of a crime unless they can prove that there is probable cause that justifies such a search. If police believe there is probable cause, they should obtain a warrant, unless they are gathering evidence in a situation where the suspect cannot assume a reasonable expectation of privacy, for example, if they have a gun out in full view.
The Fourth Amendment specifically mentions persons, papers, houses, and effects as things that should not be searched or seized. At the time, there was no way to foretell what an impact electronic communications and computers would play in various search and seizure scenarios.
When electronic devices are used, they are sometimes owned privately, and sometimes they are issued by a person’s workplace. If they are issued by a workplace, many may argue that their employer is privy to information gathered and used for whatever purpose, whether this information is over the phone or on the computer. Workplace computers and devices, as well as office phone extensions, are often easier to seize than those that are privately own.
If someone owns and uses their own computer, a higher level of privacy expectation comes into play. However, to some extent that depends on where investigators are looking. The contents of a computer’s hard drive can be a gold mine, because even portions of deleted files linger and can sometimes be used as evidence.
Just as incriminating evidence, such as a gun or drugs, that are out in the open may be used as evidence because there is not a reasonable assumption for privacy, the same goes for information that was publicly shared through social media, chat rooms, or public websites. Files that are offline, such as many photos, local documents, and offline video may have more protection.
A question of admissibility
In the criminal justice system, there is something known as the “fruit of the poisonous tree doctrine.” That means that evidence that is gathered from an illegal search typically cannot be used against a defendant in a criminal prosecution.
This can be applied to electronic search and seizure. On one level, someone’s personal computer is their private property. If a computer is taken during a search that was conducted without probable cause and a warrant, any information gathered from that computer should not be considered admissible evidence in the case.
If you have had your computer, cell phone or other electronic device seized or searched by police, you should consider contacting an experience criminal defense attorney immediately. He or she will be able to tell if your 4th Amendment right to privacy was violated.