Wednesday, May 14, 2008

Faithless Friends and Good Faith Mistakes

This post is based on some questions that were emailed me . . . questions about a private citizen searching your private property, finding evidence and then taking it to the police. The questions and my thought on each follow.

B gives C access to a computer server containing illicit materials. C turns over what he finds to the authorities, who find out that A is leasing the server. The authorities seize the server and search A's house. A claims to have never given access to B or C and there is no evidence otherwise. Can the search warrant and its fruits be suppressed?

I think A loses on the 4th Amendment issue. In analyzing this question, I’m assuming A did, in fact, give B access to the server and that the information C turns over to law enforcement, combined with whatever efforts they make to connect A to the material, gave them probable cause to get the search warrant, i.e., gave them probable cause to believe they would find illicit material on the server and in A’s house.

(If probable cause was lacking, then the search warrant should not have issued, and that should mean the evidence would be suppressed . . . unless the court finds that the good faith exception applies. U.S. v. Leon, 468 U.S. 897 (1984). Under the Leon good-faith exception to the 4th amendment’s exclusionary rule, evidence will not be excluded when police officers reasonably rely on a search warrant issued by a judge, even if that search warrant is later declared invalid. This means that even if the court were to determine that the warrant was not based on probable cause, the evidence would not be suppressed if the officers who executed the warrant did so in the good faith belief that it was supported by probable cause, since it was issued by a judge who decided probable cause existed).

So the issue basically becomes whether the evidence should be suppressed because A gave B access to the server, but did not intend that B would give C access, and never intended that B (or C) would betray him by taking evidence to law enforcement.

The answer, almost certainly, is no. I talked about this general issue in an earlier post. I won’t repeat everything I said there here; I’ll just note that for Fourth Amendment purposes, basically you assume the risk of being betrayed when you give someone access to your “stuff” . . . whether it’s your house or your car or your computer or your server. So by giving B access to the server, A assumed the risk that B would use that access to find evidence and himself betray A and/or that B would do so indirectly, by giving C access to the evidence (which set in motion the possibility that C would then betray A, if, indeed, C can be said to be in a position to betray A, since we don’t know if there was any connection between them.)

What if C hacked in to the server and gained access to it by illegal means? He saw illicit material, copied it and gave the copy to law enforcement officers. They used the copies plus what C told them (i.e., where C got the stuff) to secure a warrant to seize the server. Could the search later be deemed illegal, if C wasn't supposed to be in that server anyway?

There was a case in the city where I live: A burglar broke into an apartment to rob it, found child pornography, went to the police and told them what he'd found. They used what he said to get a search warrant, searched the apartment, found child pornography, and prosecuted the person who lived in that apartment . . . and prosecuted the burglar for burglarizing the apartment.
This scenario is a variation of the scenario above.

Basically, if a private person – your friend or a stray burglar who happens to break into your home and finds incriminating evidence – decides to turn on you, you’re out of luck. The 4th Amendment only applies to state action, i.e., to searches and seizures conducted by law enforcement agents and by people who are acting on their behalf.

So in the local case, the 4th Amendment would only be implicated if the police had put the burglar up to breaking into the apartment to see if he could find child pornography so they could then use what he found to get the warrant, and so on. If he acted on his own, then we don’t have state action and the 4th Amendment doesn’t apply . . . until the law enforcement officers enter the apartment. If they have a valid search warrant, that entry is constitutional.
In the case posited above, the entry into the apartment with the search warrant would only be a problem if the police had instructed C to hack in illegally.

If you want to read about some cases where the scenario set out above pretty much happened, but the person who hacked someone's computer did not get charged with a crime, see this post.

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