tag:blogger.com,1999:blog-21633793.post6864519322788670364..comments2023-12-12T03:19:42.467-05:00Comments on CYB3RCRIM3: Power Point and the Plain View DoctrineSusan Brennerhttp://www.blogger.com/profile/17575138839291052258noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-21633793.post-10481517288542465002009-07-31T17:33:46.961-04:002009-07-31T17:33:46.961-04:00You argue that data can in fact be seized, but not...You argue that data can in fact be seized, but not searched, so I challenge you to give an example in which data that was seized, but not searched, could be used in a court case. How do you enter data, which you have never looked at, into evidence at a trial?<br /><br />You don't because you obviously can't. My point is that the antecedent seizure -- which is how law enforcement acquires the data as a necessary first step toward looking at (searching) it and the consequences that follow from looking at it (such as using it in court) -- of the data is a 4th Amendment event which must be reasonable in and of itself.Susan Brennerhttps://www.blogger.com/profile/17575138839291052258noreply@blogger.comtag:blogger.com,1999:blog-21633793.post-2956326192640947812009-07-30T17:42:45.656-04:002009-07-30T17:42:45.656-04:00Copying data is both search and seizure! Under you...Copying data is both search and seizure! Under your scenario, an officer could copy an entire hard drive and it would not be considered a search. Yet, what do you think the officer is going to do with the copy? If they truely intend to simply make a copy, but never look at its contents, this would not be a search, but an extremely bizarre seizure. What is the cop going to say in court? "See, this guy had data on his hard drive, he's clearly guilty. Who else keeps data on their hard drive but the guilty?" Sure, the cop has seized the data, but having data is not a criminal offense. It's the contents that can make it criminal. And the only way to establish the contents is look at, i.e. search them.<br /><br />Too the same degree, how does an officer search, but not seize data later entered into evidence in court? She searches for specific files and makes note of what she finds, without actually copying the files. Yet, this would result in an absurd situation in which an officer was authorized to search for, but not seize, narrowly defined evidence of criminal activity. For example, the officer would be forced to testify that she found child pornography on the defendant's computer, but when asked to produce it, would have to say that the court must simply take her at her word without presenting any evidence. It's like saying "Your honor, we found 1000 kilos of crack, but we only looked at it. We didn't photograph it. We didn't seize it. We just made a note of it, arrested the defendant, and left the house never to return."<br /><br />You write, "We could construe the act of copying the data as a search under at least two theories: One theory... is that the copying by the equipment is essentially the first step toward this officer’s viewing the contents of the hard drive, so it is the beginning of a search." <br /><br />Isn't this the only logical way to construe copying data? Otherwise, the situation is the absurd ones that I described above. I am not a lawyer, so maybe I am missing the distinction you are making between the legal meaning of search and the legal meaning of seizure, but it seems to me that barring the absurd scenarios I described above, data cannot be either searched or seized, but must be both searched and seized if it is to be entered into evidence in court.<br /><br />You argue that data can in fact be seized, but not searched, so I challenge you to give an example in which data that was seized, but not searched, could be used in a court case. How do you enter data, which you have never looked at, into evidence at a trial?Anonymousnoreply@blogger.com