Brad: Last week we talked about search warrants. We're going to continue that conversation today, but do you want to give us a brief recap of what we talked about?

Michael: Sure, the search warrants come up when the government is going to execute what's called a search on a person's property or home. The term search is a very important legal term. It's only considered a search if a person's reasonable expectation of privacy has been implicated. We talked last week about the reasonable expectation of privacy a person in their home is considered to have a much higher expectation of privacy than they would when they're having a conversation with somebody on a park bench in a crowded park where people are walking by. Same thing with a person doing something kind of in plain view within the confines of their vehicle that has windows all around it. So that is the time where we have to determine whether or not there is actually a search. If a search happened, then the other question is, "was there probable cause?" and probable cause, which we defined last week, essentially a fair probability that contraband or evidence of a crime will be found inside of the car. The officer is going to have to have specific facts that he can point to, observations that he can provide to the court that is reviewing the search to determine that he did have probable cause. And then finally, if the officer has that, he would have to get a warrant to execute a search. Meaning he would have to petition the court, show the court the affidavit of probable cause and provide those facts to the court, the court can make the determination that he has the warrant to execute a search on the property. There are some exceptions to that requirement which we talked about last week and that brings us to a whole other area of questions. What happens if a person is subject to a search and the officer doesn't have probable cause or a warrant? That's something that we can discuss during our next conversation.

B:Real quick, Mike, you guys practice criminal defense law in Penniless County, Pasco County,  Hillsborough County, you know, the Tampa area. Is this search warrant that you're talking about Florida specific or ?

M:That's a good question, actually, because a lot of people know that we've got two types of system. We've got the State System where we have state laws and state courts and then we have the Federal System where we have everything's kind of controlled by the US Constitution. In the State of Florida we have a specific clause in our Constitution called the Conformity Clause. The Conformity Clause means essentially what it says, that whatever decisions made by the US Supreme Court about the 4th Amendment, which covers search and seizure type issues, whatever decisions the US Supreme Court makes, the State Courts will conform their bindings and will adopt, basically, those decisions and we use those as the standard. So anything that we talk about in Florida about search and seizure issues is really gonna have the same exact implication throughout the US. The only time it wouldn't is if there is some new and novel decision made, like a case of first impression that came up for instance in the state that hasn't happened anywhere else. But for the most part, it's exactly the same.  

3:56 B: Ok good, well what about, let's talk specifically about search warrants just on computers, computer files, contents on your computer...

M: Alright, well the first question that would come up is does a person have a reasonable expectation of privacy for the content of his or her computer. And I think most people would  answer, "Absolutely!" I think if you ask most people if they believe that the programs on their computer, the photographs on their computer, any kind of data files that they have, that they believe that those things are personal and secure and that they expect those things are private from other people's eyes. I think most people would answer with a resounding "yes!" Most people probably have a passcode on their computer. The sole of keeping unauthorized users out and prying eyes out, I would say. So it becomes very interesting with certain types of cases when we're talking about search warrants specifically for computers. Most of the time, people have their computer. Well, I say most of the time, but it used to be maybe a few years ago most people had computers in their home. I think we're getting to a point today where computers are a lot more accessible and easier to carry around that you see that maybe not everyone has a desktop computer anymore. But, still, most of the time people are accessing their computers from someplace where they have some type of wifi connection or some type of data or cable connection. And most of the time what people do on their computer is not open for public view and they absolutely have a reasonable expectation of privacy on their computers. And to get a warrant to search the contents of the computer, the government would have to have some reason. Some reason to provide to the court, a judge, "I'd like to search Mr Smith's computer. Please let me do it." Well, the judge doesn't just say, "Well, do you want to? I'll give you the warrant." The judge says, "I'll let you do it but you've got to provide me some reasons why you should search the computer. And the reasons like we talked about last week are probable cause. The individual who is going to be searched has to be shown, well the officer, I should say, has to explain that there is a  fair probability that evidence of a crime is going to be found on that computer. And the only way the officer is able to do that is to provide details, facts. Here's the most important thing when it comes to any type of search and a search warrant: The facts that are provided to the judge that give him the basis to execute a search on a computer have to be legally gained. Meaning, you can't perform an illegal search on a person's computer and then go to a judge and try to cure it by saying, "hey judge, I found these images on a person's computer. They are illegal and I'd like to search his computer to seize these images." Because if the initial search was illegal, you can't justify or cure an illegal search by getting a warrant. So the way that becomes very interesting is with computers, in particular types of cases where there might be images downloaded onto a computer that are absolutely illegal. That comes up most often in cases involving child pornography. Where individuals will download images that are out there on the internet of folks who obviously have children and it's absolutely illegal. The hard part for law enforcement in knowing who has these images on their computers and how they can get warrants to search these people's computers. Because, obviously most people don't have conversations in a public park about what they have on their computer. And they certainly don't advertise what they have on their computer, especially things of this nature. So the government has found a way, at least in my jurisdiction, has found a way to find out what people have in their computer on certain occasions without it being considered a search. Because that's kind of the catch 22 we have. You can't get into the computer unless you have probable cause and you can't provide probable cause unless you get into the computer to show the judge what the guy has in his computer. So you kind of have a tough situation for law enforcement on occasion. But what has developed in the internet these days and has been developing for a while are these websites called file sharing websites. I may be dating myself a little bit but I remember when I was much younger there was a file sharing website called Napster. Napster was this thing that developed and the music industry was very upset and everyone got upset about it and it was where people would have songs on their computers and you would sign up for this Napster file sharing website where it would allow people to open up the contents of their computer to folks all throughout the internet. You'd type in a search for a song. You'd type in whatever song you were looking for and the search would find a computer that was open and was out there. And it would say, "I found a computer that has it" and it would begin to download or copy the song from another person's computer. That's in a nutshell what file sharing is. People are sharing certain files and they are allowing their computer to be open to the world - to the internet. Well, that same idea of file sharing also occurs in this child pornography world where folks who are looking for these illegal images type in specific searches and they go to these file sharing sites and they search the internet for other computers that have it on their computer and they share these files. They download these files. So what the government has begin to catch onto is that these file sharing sites for a period of time open up their computers and images, believe it or not, can be caught in the transmission between computers over the internet. So what the government has done is through these specific searches, it's kind of like just casting a net out into the internet, and they cast this net out and they look for these specific data components that kind of set an alert. They have a - in the State of Florida there's a specific system designed that looks for specific known images of child pornography. It has become one of these unfortunate stories that some of these images are used time and time and time again and they become known. They become known to law enforcement. Law enforcement even has names of the individuals who are pictured. And what happens is they law enforcement does this search on the internet and it captures these images being transferred from one computer to another computer. And then this computer that the law enforcement officers are using or this program, I should say, alerts them that they have found a known image of child pornography. And they then determine where it is coming from or where it is going to - what the IP address is, which is what every single computer has when they are downloading images. So the question that you have is, well how can they do that? They're basically going into your computer and searching it. And that brings us back to the first major question, "Is that a search?" Because the fact of the matter is if it is a search, it is absolutely illegal. The government can't do it. It can't be supported and anything they find can't be used. But the unique thing about this particular file sharing scenario is that they are opening up their computer to the world and as we talked about last week, when you open up something for the whole world to see or the whole world to come in and view what you have, you do not have a reasonable expectation of privacy. That is not an expectation that society is prepared to recognize as reasonable. If you open up your computer for the whole world to see. Now you might have a subjective expectation of privacy wherein the guy on the computer might not even have a clue what file sharing really is. He might not even know that when he's downloading these images, that he's opening up his computer for other folks to download what he has on his computer. But that doesn't matter because the standard is a reasonable expectation of privacy, meaning both you have to have the expectation and it has to be objectively reasonable to the reasonably prudent individual. And in this situation, file sharing is not recognized as something that is private because you open everything up. So because there is no reasonable expectation of privacy, you cross out that word search and it is not considered a search. And what does that mean? If it's not considered a search, the 4th Amendment is not implicated and you don't need probable cause. And the reason why that is so important is because these officers who are making these searches don't know who they are looking for. They don't know who they're looking for until they get the images. And that's when we start to walk into the actual search warrant for the particular computer. So step one, the officers do this net search for all of these known images of child pornography. And they determine what IP addresses are sharing these images or uploading these images. And when they get that, they then identify the IP address, they look for how many times images have gone to that computer on a particular time period. And after they get that information, they then send a subpoena to the internet service provider. When they send a seeping to the internet service provider, the service provider provides the name of whoever's name is on the account. And when they provide that name, the officers now have enough in their estimation their the number of searches that have been done the number or images that have been downloaded that they can find, to go to a judge to get a warrant to search that person's home. What the officer would have to be able to provide to the judge is the facts that I just articulated, that is "we did this internet search. We found a lot of known images of child pornography going to this particular IP address. We subpoenaed bright house networks. Bright house networks told us who the account holder was and we want to search Jon Smith's home because we've seen on these three months or this many days this many images of child pornography have been downloaded to that computer." At this point, so far they still don't know the identity of the person downloading the images. And why is that? Well, because a lot of people do, in a home, have access to a single computer. All they really know is that this person is an account holder with this IP address. At that point, they go to the judge and they provide that information. All of the information has been obtained legally and the judge makes a determination whether to issue a warrant. And if the judge issues the warrant, then the person must comply when the officers come to the house to search the home. And the warrants are pretty encapsulating when they talk about a search for these types of images. They talk about searching the home, computer, any computer equipment in the home, any data equipment in the home, and the officers execute the warrant and they begin to search all of the data files. And if at that time they find actual images of child pornography on the computer, then that's where the possession of child pornography charge comes and the person gets arrested at that point. 

B: Does that also include smart phones? 

M: It would. The warrant is to search the location the officer believes the evidence is going to be. So most of the time it is  a home, because most of the time people keep computers - even if they're a laptop - they usually keep them with them or somewhere close to them. And the IP addresses goes to a particular address so the search warrant would authorize whatever the officer has asked for, whatever they can have a reasonable expectation to find evidence on. So that would cover computers, and generally that covers phones, ipads, it even covers playstations and things like that. The important thing to remember about a search warrant is the search warrant is super specific and if something is searched that isn't mentioned in the warrant, that could be a violation of the 4th Amendment and that particular item of evidence might be suppressed if anything is found. So I would say law enforcement, in my experience, is very good at making it as broad as they can while still making it conform with the 4th Amendment. 

B:Alright, you want to kind of just give us a recap?

M: Sure, so what we were talking about for this period of time is search warrants when it comes to computers. Obviously, the contents on a person's computer are private. Everyone is prepared to recognize that individuals have a reasonable expectation of privacy on the contents of their computer. So how do officers get these images? How do officers find evidence of crime where people are downloading these types of images on their computers if they can't even get into their computer? The one unique scenario that has come up that is used quite a lot in cases that I have had experience with are where people go to these file sharing sites and they open up their harddrive essentially and search other people's hard drives for particular images that they're looking for. And once you open up your hard drive, that expectation of privacy is gone. And if you don't have that expectation of privacy, you don't have a search. If you don't have a search, you don't have a 4th Amendment implication, which means the officers can do it. There's no rule to stop it and the officers then get the information that they need to provide to a judge to get a warrant issued to search an actual computer.