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Law Enforcement Needs Warrant to Seize Digital Data

Posted on in Child Pornography
Law Enforcement Needs Warrant to Seize Digital DataYour digital devices may hold crucial evidence in a criminal case against you. Your data is the key evidence if prosecutors are accusing you of committing a computer crime, such as:

  • Possessing or distributing child pornography;
  • Soliciting sex from a sex worker or minor; or
  • Stalking or harassing someone electronically.

Other digital records can be evidence of your intent to commit a crime through your communications with others. The fourth amendment to the U.S. Constitution protects your digital devices and data from illegal search and seizure. Law enforcement must have a valid warrant in order to access your digital records as evidence for the prosecution.

Contesting a Warrant

In order to receive a warrant, law enforcement must establish that there is probable cause that you committed a crime and that searching your property may uncover evidence of the crime. For computer crimes, probable cause may come from alleged illegal activity that can be traced back to your Internet Protocol address. For other charges, law enforcement must show that there is a high probability that your digital devices contain evidence related to your charge. You have multiple grounds for contesting the validity of a warrant, such as:

  • The warrant not giving authorization to seize electronic data;
  • Police waiting too long to conduct a search after obtaining a warrant, making the warrant stale; or
  • Police basing probable cause on misinformation or a misrepresentation of the facts.

Staleness claims rarely work in warrants for digital records because electronic data is designed for longevity. A warrant to search for records in your home or office is often assumed to include electronic devices, even if they are not specified in the warrant.

Cloud Data

You may store some of your digital records on a cloud storage system, meaning that a third-party server is holding that data and allowing you to remotely access it. There has been some legal debate about whether a warrant to seize and search your digital devices includes your cloud data. Two federal court opinions have set precedents:

  • Law enforcement cannot seize cloud data if the cloud server permanently resides in one location outside of U.S. jurisdiction; but
  • Cloud data is vulnerable to a warrant if the cloud service moves the data amongst multiple servers, including some located in U.S. jurisdiction.

Contact a Wheaton Criminal Defense Attorney

Courts approve search warrants without requiring law enforcement to establish probable cause or search parameters. A DuPage County criminal defense lawyer with Stephen A. Brundage, Attorney at Law, will contest evidence obtained from an unlawful search. To schedule a consultation, call 630-260-9647.


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