Search of Computer/Phone, DNA? - Law Office of Timothy Ciaffoni

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Computer, Cell Phone, DNA, and GPS Searches

The evolving issues in searches of computers involve warrantless seizures of computers and their hard drives as well as search warrants for the contents of the computer. To obtain a search warrant, police must show probable cause that a crime was committed and that items connected to the crime are likely to be found in the place specified by the warrant.

 

Expectation of Privacy in Electronic Devices. The measure of a defendant's expectation of privacy is whether he or she has manifested an expectation of privacy in the object of the search and whether society is willing to recognize that expectation as reasonable.

A defendant's GPS device and resulting data manifests no expectation of privacy that would require a search warrant. Commonwealth v. Johnson, 91 Mass. App. Ct. 296 (2017).

 

Wiretap Statute. It is permissible to issue warrants for police to intercept cell phone calls and texts under the wiretap statute. Commonwealth v. Moody, 466 Mass. 196 (2013). A Search Warrant requires Probable Cause.

 

GPS Tracking. Police secretive installation of a GPS device on a truck constituted a search requiring a search warrant. Commonwealth v. Rousseau, 465 Mass. 372 (2013).

 

Police Extract DNA Sample. Requiring a DNA sample pursuant to a search warrant is permissible where there is probable cause that a crime was committed and that a saliva sample would provide relevant evidence. Commonwealth v. Kostka, 86 Mass. App. Ct. 69 (2014). However, the Supreme Judicial Court held the search not permissible where the DNA has not been shown to be sufficiently relevant to the question of the defendant's guilt or innocence. ___ Mass. ___ (2015).

 

Police Search an iPhone. While police may seize a cell phone as incident to a lawful arrest, this does not authorize a warrantless search of the phone. Commonwealth v. Freeman, 87 Mass. App. Ct. 448 (2015).  However, a search warrant for an iPhone is permissible where there is probable cause to believe that files containing photographs contain relevant evidence relating to the crime. Commonwealth v. Dorelas, ___ Mass. ___ (2016). Where the subject of a seizure is a computer-like device, including a cell phone, the police must have information that suggests that “particularized evidence” relating to the crime will be found on the device. Commonwealth v. White, 475 Mass. 583 (2016).

A limited search of a cell phone's "recent call list" has been ruled as reasonable grounds to believe that the call list would reveal evidence related to the crime which defendant had been arrested. Commonwealth v. Berry, 463 Mass. 800 (2012).

 

Text Messages. The Commonwealth cannot obtain the content of text messages without a warrant after a showing of probable cause that the search would produce evidence of a crime. Commonwealth v. Fulgiam, 477 Mass. 20 (2017).  Police may not seize or search a cell phone to look for evidence unless they have information establishing particularized evidence likely to be found there. Commonwealth v. Morin, 478 Mass. 415 (2017)

 

Search for Unlawful Content on a Person's Computer. Recent case law holds that a search warrant may request to search "all" electronic devices in an apartment where the affidavit included a particular IP address which was sharing child pornography. Commonwealth v. Molina, 476 Mass. 388 (2017); Commonwealth v. Martinez, 476 Mass. 410 (2017). Sexually explicit Internet conversations covering child enticement were found sufficient for probable cause in Commonwealth v. Disler, 451 Mass. 216 (2008). See also Commonwealth v. Kaupp, 453 Mass. 102 (2009) (police properly seized the defendant's computer pending issuance of a search warrant, on probable cause to believe that it contained child pornography and pirated copies of recent movie releases, but their subsequent affidavit failed to establish a “substantial basis” for concluding that the defendant's private computer files—those not available to other users on the network—contained child pornography).