Search and seizure of digital evidence: An examination of constitutional and procedural issues

Robert Ernest Moore

Abstract

As computers have become more accepted in society, they have also become frequent instruments used in the commission of criminal activities. Those who would commit criminal acts are constantly improving their knowledge of computers and their role in various criminal acts, but it is generally accepted among both academics and practitioners that those in the criminal justice field are not keeping pace. There is a strong need for individuals in the field of criminal justice to understand the complex legal issues associated with investigating high technology crimes. This work provided the reader with a brief introduction to common problems related to high technology crime and digital evidence, such as modifications necessary to criminal investigations and increased awareness of the tools being used in conducting these criminal acts. Special focus was placed on providing information relating to the various types of crimes considered high technology crime. The history and the development of these crimes was discussed to provide information that will allow individuals who are new to this area of crime a level of understanding necessary for those who will encounter a technology-assisted crime. A discussion of digital evidence was provided to further assist in the understanding of the importance of properly seizing and securing digital evidence left from the commission of high technology crimes. Because there have been few direct guidelines established by the United States Supreme Court, in regards to searches and seizures involving digital evidence, this work examined the various lower court rulings in order to provide the reader with knowledge of several dangers associated with improperly seizing digital evidence from computers or other technological device. Due to the consideration that there may be little physical evidence (hair, fingerprints, etc.) left after the commission of a high technology crime, the improper seizure of digital evidence was shown to be detrimental to the successful investigation and prosecution of a high technology crime. Along with the legal issues associated with the seizure of digital evidence, the various procedural issues associated with executing a search warrant on a digital crime scene were discussed. Currently, there are several works on the issue of properly executing a search warrant for digital evidence, however, there are several fatal flaws to the works and as such, the issues require a deeper examination. Recommendations were provided, based on discussions relating to the lower court decisions and the previous works on seizure, for individuals who may encounter a digital crime scene in the near future.