‘Warrant’ The Investigation for Fair Trail Act 2013

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2. (n) ‘warrant’ means warrant of surveillance or interception and includes warrant issued under section 11 whereby the applicant is allowed by the judge to collect evidence through interception, recording through audio or video or any means of communication or surveillance of movements and actions through minimum interference in property and privacy of any person including human intelligence.

Commentary

Seizure outside warrant:

Computer searches are not per se overbroad. During search of computers and records from law office, seizure of items outside the warrant was inevitable, but not unconstitutional. If computer and related hardware must be removed from search scene to perform particularized search for records, copies should be made and the computer equipment returned as soon as possible. There is no justification for favoring those who are capable of storing their records on computers over those who keep hard copies of their records. U.S. v. Hunter, 13 F. Supp.2d 574 (D. Vt. 1998) (citing Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F.Supp. 432, 437 (W.D. Tex. 1993) and U.S. v. Abbell, 963 F. Supp. 1178 (S.D. Fla. 1997)). See also U.S. v. Lloyd, 1998 WL 846822 (E.D.N.Y.).

In U.S. v. Lucas, 932 F.2d 1210 (8th Cir. 1991), police seized an answering machine and its tape while executing a warrant that provided for the search and seizure of books, records and other papers relating to the distribution of controlled substances. The court found that the language in the warrant providing for the seizure of ‘records’ supported the seizure of the answering machine and its tape. The court rejected defendant’s contention that the government needed a second search warrant to listen to the tape.

Warrant to search for and seize “any records or documents associated with cocaine distribution” justified police listening to three unmarked audio cassettes and then seizing the tapes after determining that they related to the investigation. U.S. v. Peters, 92 F.3d 768 (8th Cir. 1996)

Unpublished decisions in which courts have concluded that police may seize information from computer disks without obtaining a second warrant: U.S. v. Sprewell, 1991 WL 113647 (9th Cir. Cal.) (search warrant authorized search for any tally sheets or pay and owe sheets tending to establish narcotics transactions. Personal computer, programs and disks taken to police headquarters where a computer specialist helped find files in the computer’s electronic memory that purportedly contained evidence of narcotics sales.); U.S. v. Sissler, 1991 WL 239000 (W.D. Mich.) (warrant authorized seizure of records of drug transactions. Police seized hundreds of computer disks and a personal computer. Citing Ross, the court held that the police were permitted to examine the computer’s internal memory and the disks.)

Computer hardware was seized as an instrumentality of the crime of obscenity distribution over a computer bulletin board service. Warrant was not overbroad under the Fourth Amendment. Concomitant and incidental seizure of e-mail and software stored therein did not invalidate the

hardware seizure. The fact that a given object may be used for multiple purposes, one licit and one illicit, does not invalidate the seizure of the object when supported by probable cause and a valid warrant. This is not approval of any subsequent efforts by the police to search or retain the stored files without a warrant (police did not access the stored files). Davis v. Gracey, 111 F.3d 1472 (10th Cir. 1997).

Police officer’s search of computer files he had probable cause to believe contained child pornography exceeded scope of warrant to search computer for drug related documents. “His seizure of the evidence upon which the charge of conviction was based was a consequence of an unconstitutional general search, and the district court erred by refusing to suppress it. Having reached that conclusion, however, we are quick to note these results are predicated only upon the particular facts of this case, and a search of computer files based on different facts might produce a different result.” U.S. v. Carey, 172 F.3d 1268 (10th Cir. 1999) (contains analysis of several other computer search cases).

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