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Does the Automobile Exception Permit a Search of Computers Found in a Vehicle?:
Under the so-called "automobile exception" to the warrant requirement, the police can search a car for evidence without a warrant — including any containers in the car — if they have probable cause to believe that evidence is in the car and that evidence could be located in the place they search. But does this apply to computers? That is, if the police find a laptop in a car, can they search the laptop without a warrant under the automobile exception?

  I'm not aware of any court having ruled on this issue before, but last week the Tenth Circuit came close: Its opinion in United States v. Burgess spent several pages pondering this question before deciding not to decide the issue. If you're interested, check out the discussion at pages 13-20. The opinion also has a very interesting discussion about different ways of limiting the scope of computer searches later in the opinion.
Wholesale (mail) (www):
This is crazy, too much power for cops.
8.20.2009 11:29pm
PersonFromPorlock:
Under modern constitutional doctrine, why shouldn't police search a computer-inna-car if doing so serves a compelling government interest? :^(
8.21.2009 12:15am
Jerome Cole (mail) (www):
It seems that a computer is very much like a container, but one would have a much higher expectation of privacy for the contents of a laptop than say an ice chest. Tough issue.
8.21.2009 1:15am
Soronel Haetir (mail):
Plus I think Gant would be important here. There may well be plenty of crimes where evidence of the crime of arrest is likely to be in the car, but not on the laptop.
8.21.2009 2:06am
one of many:
it is difficult to see how the rational for the automobile exception would apply. Information on a computer is just as capable of being removed from the jurisdiction before the arrival of a search warrant in one's bedroom as it is in one's automobile. I think the automobile exception (which dates from the 1920s) is due for a serious rethink in light Rule 41(d)(3)(A) (federal) and similar rules in the states.
8.21.2009 2:12am
Frater Plotter:
For a while now I've thought we needed an amendment to replace "persons, houses, papers, and effects" with a more up-to-date list.

"Papers" in the 18th century served the role of both communications (e.g. email, phone calls) and data storage (e.g. databases, files on disk). Yet different statutes and case law have come to be applied to communications in transit, stored communications, and other files.

It would have been abhorrent to the Founders, I suspect, for the government to require a printer to submit a copy of every broadsheet or pamphlet he printed to the police, for their convenience in investigating treason or conspiracy. Equally abhorrent to have every letter that passed through the post opened and copied for later investigation. But this is what current wiretap law and practice do.
8.21.2009 2:34am
Just Dropping By (mail):
For a while now I've thought we needed an amendment to replace "persons, houses, papers, and effects" with a more up-to-date list.

Except that any attempt to amend the Fouth Amendment would undoubtedly result in even fewer protections against searches/seizures.
8.21.2009 7:50am
C Miller (mail) (www):
It's not exactly the same thing, but many courts have found that officers can search the contents of a cell phone incident to a lawful arrest:

Cell Phone Searches
8.21.2009 10:53am
ProctorOfAdmiralty:
If I remember correctly I thought that by "contents" that the contraband item suspected must be of proportionate size to the suspected item--so here then, e.g., a drug stop can't result in a laptop search?
L.
8.21.2009 11:05am
Jerome Cole (mail) (www):
I have an even more difficult question that just came to mind. Suppose it was permissible to search a computer under the automobile exception. If someone was logged into their online email account would it be legal for the police to open the web browser and peruse the subjects emails?
8.21.2009 11:26am
dirc:
If the police can search the laptop found in the car (under the automobile exception), and the laptop has an encrypted drive, is the owner required to reveal the encryption key?

If the owner is not required to reveal the key, can the police attempt to recover the key and read the contents of the encrypted driver?
8.21.2009 11:49am
Dave N (mail):
Even though I am a prosecutor, the "automobile exception" makes less and less sense as technology advances. I have no problem with a temporary seizure of an automobile while the police get a warrant. It makes absolutely no sense to me that a computer can be searched if it is an automobile, but if the same person is carrying it on his person while walking down the street, a warrant is required.

By the way, while the background of the parties is usually irrelevant in cases, sometimes it can be interesting. In this case David Burgess was not an active member of the Hells Angels in Nevada, he also owned one of Nevada's legal brothels.
8.21.2009 11:57am
Dave N (mail):
dirc asked:
If the police can search the laptop found in the car (under the automobile exception), and the laptop has an encrypted drive, is the owner required to reveal the encryption key?

If the owner is not required to reveal the key, can the police attempt to recover the key and read the contents of the encrypted driver?
The answer to your first question is "no."

The answer to your second question is "they can try" but someone sophisticated enough to encrypt likely will have a password not easy to guess.
8.21.2009 12:02pm
Dave N (mail):
Jerome Cole,

Your question is interesting but I am guessing "no"--largely because of the way police are trained to inspect computer data. Most police do not look at the actual computer. Rather, they create a mirror of the harddrive and look at THAT.
8.21.2009 12:05pm
Dave N (mail):
Proctor of Admirality,

Burgess was suspected of not only possessing controlled substances, but also selling them. The search of the laptops was for evidence that Burgess was, indeed, selling narcotics--which could include records of such sales.
8.21.2009 12:08pm
fishbane (mail):
If someone was logged into their online email account would it be legal for the police to open the web browser and peruse the subjects emails?

I was thinking along similar lines. Is there case law on finding, say, a key to a safe-deposit box or similar in a car?
8.21.2009 12:20pm
hrumphgrumble (mail):
Since the SCOTUS limited the automoble rule this past session in Gant v. Arizona I would suspect it is more likely that laptop would be protected. The court in Gant seems to think the that part of the rule makes sense to protect officers' safety and makes no sense as another excuse for these booger-eating rednecks to search without a warrant.
8.21.2009 12:23pm
Christopher Cooke (mail):
Was the phrase "booger-eating rednecks" used in Gant? I must have missed it.
8.21.2009 1:15pm
fishbane (mail):
Was the phrase "booger-eating rednecks" used in Gant?

Of course not - that wouldn't be professional. It was "donut-chasing doughy good-ole-boys".
8.21.2009 1:20pm
FWB (mail):
The entire auto exception is one of those legal manipulation the kudges pulled out their arse. Not the clause "probable cause" is linked irremovably from obtaining a warrant, NOT in executing a search. Reread Cooley and learn a bit. All the "probable cause" BS espoused today was made up by some black robed ejit.

When the Right are incorporated against the states, the judges ALWAYS leave a hole large enough through which to drive a truck. They never exactly incorporate the Right.

Tiocfaidh ar la!
8.21.2009 6:28pm
Randy R. (mail):
Was there a horse and buggy exception in the 18th century?
8.22.2009 2:59pm
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8.22.2009 9:09pm
patrickhenryreturnsin09:
If the auto exception or the new Gant search incident to arrest (if reasonable to believe there is evidence of crime) exception is applied to the searching of the contents, and files of a computer it will be devastating to any remaining view of privacy within a car. It is one thing to rummage through the tangible contents of a car. A car can only hold so many tangible items. It is another thing to extend this to an item like a laptop which has the capacity to hold humongous quantities of information.
8.24.2009 1:37am
Sean L. Harrington (mail) (www):
I have a question or comment regarding the U.S. v. Payton case (comment period closed), which is relevant to this discussion, as well.

Regarding Payton, you contended:

the Fourth Amendment simply does not require warrants to list the items to be searched. As the text of the Fourth Amendment makes clear, warrants must "particularly describ[e] the place to be searched and the persons or things to be seized." The Fourth Amendment requires a description of the things to be seized, not a description of containers that are searched during the hunt for the things to be seized.

However, in your law review article, Searches and Seizures in a Digital World, you argued that, "Computers are like containers in a physical sense, homes in a virtual sense, and vast warehouses in an informational sense." You contended, at length, that searching a computer hard drive is tantamount to searching a home. Id. at 540-47. If this is so, should not the hard drive should be regarded as a place? And, if it is place, then it should be explicitely so defined in the warrant and be exempt from automobile-exception searches, as well?

Under this theory, the domain of a computer harddrive is not merely an opaque container (a "thing") within a place to be searched, but is a place -- a vast warehouse, as you said. The warehouse could exist on the hard-drive of the computer in the home or as an online back-up systems (or both, where the computer may actually be connected to the off-site location via VPN or virtual desktop or through mirroring) or in an offsite storage location. As such, the "place" should be denominated with specificity in the warrant. If the computer[s] is discovered by law enforcement during a valid search of a home or business, all it takes is a phone call to explicate the reasons why the computer should be included and to have the warrant expanded, during which time the home or business is secured.

Consider this example of a public policy reason justifying this viewpoint: Suppose a laptop is shared by both a wife and a husband, but they have separate password protected accounts under Windows XP. The wife is charged with stealing intellectual property from her company and there is no probable cause to believe the husband has anything to do with it. What entitlement does the state have to either search or seize the hard-drive, where this affords the state the ability to view the husband's private domain and claim "plain view" to whatever is there found?
8.25.2009 5:54pm
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8.26.2009 7:41am
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8.31.2009 7:00pm

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