Friday, May 15, 2020

WHAT ARE THE RULES FOR A POLICE SEARCH OF MY COMPUTER?

The founding fathers likely never envisioned the challenges to the Fourth Amendment that storing your life on your computer would create. The courts, however, have developed some guidelines as these cases have come before them. The court in People v. McCavitt has spelled out these rules.

For starters, you do have a reasonable expectation of privacy in your personal computers and computer files. Therefore, police must obtain a warrant before searching your computer (unless some exception to the warrant requirement exists such as the evidence was in plain view). After obtaining a warrant, the police may create a mirror image of your hard drive for later analysis.

Once an item has been legally seized, that item is no longer private. The police may conduct further searches without a warrant as long as your computer or the mirrored hard drive remains in their continuous possession. There are no limits as to when a search must occur or how long it may last. However, the state must still complete the review of your electronic data within a reasonable time, and they may not hold onto your property indefinitely.

Courts determine reasonableness on a case by case basis. When it comes to computers, a search is reasonable if it takes several years to complete as long as it ends before trial and stays within the parameters of the original search warrant.

The state might still violate the Fourth Amendment if state fails to quickly return information contained in a mirrored hard drive that is not within the warrant’s scope or if the state retains all data in a mirrored hard drive regardless of whether a warrant authorized its seizure. All property seized must be returned to you once the criminal proceedings have terminated.

In People v. McCavitt, the defendant, a Peoria police officer was charged with child pornography. Police made an EnCase file to examine the defendant’s hard drive. The defendant was found not guilty. Police then opened a further investigation, reexamining the original EnCase file. The court found that this violated the Fourth Amendment. Once defendant’s trial ended, police could not retain any portion of the EnCase file and thus had no authority to search that file.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Was the search of your computer legal? Can the state prove all the elements of your offense beyond a reasonable doubt? Even if the police acted lawfully and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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