When does the government need a warrant to search and seize a suspect’s computer or electronic device? Can an investigator search a suspect’s mobile phone without a warrant? Does the government or an employer need a warrant to search an employee’s computer?
Search and seizure of electronic evidence is typically conducted with a warrant in a criminal investigation. However, it is possible in some circumstances to conduct the search and seizure without a warrant. In this topic, you will come to better understand restrictions that the Fourth Amendment places on search and seizure of computer and electronic data. You will also come to better understand special considerations and limitations of search warrants used to search electronic evidence.
Consider how the use of a search warrant may be affected or restricted by an employee's reasonable expectation of privacy in the use of a computer in the workplace. Also, consider how the use of a search warrant may be affected by an owner's/user's reasonable expectation of privacy in the use of a computer in a private home or a private place.
More information can be found in the “Searching and Seizing Computers” reference below on pages 4, 42 (workplace searches), and 134.
There are usually restrictions, e.g., locations to be searched, specific items to search for, and in some instances for digital forensics cases, key words that can be used by digital forensics examiners while examining digital media. A law enforcement officer can't exceed the scope of the warrant.
In terms of executing/serving the warrant, there may be restrictions authorizing daytime service only, or a case may have a nighttime service endorsement from the court.
There is a general Constitutional interpretation disfavoring the issuance of "general warrants" under the Fourth Amendment as interpreted by the Supreme Court in a number of key court decisions.
References
Jarrett, H. M., Bailie, M. W., Hagen, E., & Judish, N. (n.d.). Searching and seizing computers and obtaining electronic evidence in criminal investigations. https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/01/14/ssmanual2009.pdf
Resources
See pages 4, 42, 63, and 134 in Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations.
This link includes material from page 63: Drafting the Affidavit, Application, and Warrant
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