Law of Searching and Seizure

 1. Officer Friendly knows that there is an arrest warrant for Donna. She has been charged with killing her husband (Bill). He waits until Donna gets into her BMW and stops her after she has driven 1.5 miles. After he makes the stop, Officer Friendly seizes Donna’s iPhone and searches it without a warrant. He finds an email from Donna’s mother to Donna. The email says: “Honey – you have got to get a grip on yourself. You tell me every day how much you love him. Then your sister tells me that you told her that you hate him and want him dead.” Prosecutor Ken Comet plans to introduce the email at Donna’s trial. What problems, if any, is Comet, the aging crime-buster, likely to encounter? Please list, and evaluate the merits of, all issues the defense attorney is likely to raise both with the search and the effort to admit the email at trial. Please be specific. (15 points) 2. You are the police “computer expert” assigned to help Prosecutor Comet. He asks you to get all Donna’s emails (including the one from her mother in #1 above) from “Yahoo or whoever it is – whoever she uses to relay these things.” What steps will you have to take? For instance, what laws are involved? What level of proof must you meet? Does the prosecution gain any advantage if it obtains these emails from the ISP? Please be specific. (10 points) 3. Assume that the courts in the jurisdiction are considering requiring a judicially-approved “search protocol” before a judge will sign a search warrant authorizing a search of any computer device. The Police Chief has asked you to outline the reasons why this is “another bad idea” from the court. Please be specific. (10 points) 4. Many have argued that subscribers do have a 4th Amendment reasonable expectation of privacy in emails stored temporarily by an ISP. Please make the argument that this is, indeed, a reasonable view. If you are uncomfortable making that argument, please make the argument that it is an unreasonable view. (15 points) 5. The defense moves to exclude the testimony of Ken, the prosecution’s computer expert. It contends that his testimony is not reliable. Ken used EnCase software – a product that he has used to conduct more than 150 forensic investigations – to develop his testimony. He, in turn, vouched for the reliability of the software by pointing out the “hash values matched” when he compared that of the original to that of imaged copies. The defense argues that Ken has no basis for testifying on the reliability of EnCase because he does not know, or understand, the algorithms that are the basis for “hash values” that he is relying on. Please explain why the court should accept Ken’s testimony on the reliability of EnCase. (10 points) 6. The X cell phone company, headquartered in Kansas, has “past”/”historic” cell phone location information that is crucial to a pending kidnapping case in Vermont. The prosecution is relying on this evidence to prove the case. Please explain how this evidence can be authenticated without bringing a witness from Kansas to Vermont. (10 points) 7. Mr. Smith and Mr. Jones tell police that Billy has admitted to them (on separate occasions) that he (Billy) has child pornography on his computer. Police obtain a search warrant, backed by probable cause, to search Billy’s computer. When computer experts seize the computer and “activate” it at the lab they find that the files are encrypted. The grand jury serves Billy by with a subpoena that orders him to enter the password to “decrypt” the files so that grand jurors can actually see what’s in the files. Will the grand jury’s subpoena be upheld by the courts? Please explain. (10 points) 8. Tim, a weekly newspaper publisher, published an “expose” on drug dealing in Peyton Place. The story included anonymous quotes from “denizens of the local drug scene” and photos of the “denizens” with their features obscured. Chief Hammer has “plenty of probable cause” to believe that evidence of illegal delivery of cocaine will be found on the newspaper’s computers. How should the chief proceed? (5 points) 9. Critics have proposed several changes to ECPA. Please select the change that, in our opinion, is most urgently needed and explain the basis for your selection. (10 points) 10. Mr. Davis and Mr. Johnson tell Agent Johnny Dollar that they each saw child pornography on Mr. Smith’s computer “about 18 months ago – while we were all still getting along.” Agent Dollar confirms that Mr. Smith still has a computer and then applies for a search warrant. Judge Roy Bean says – “Explain to me why the information you got isn’t too stale.” How should Agent Dollar respond? Please be specific. (5 points) only answers need to be displayed on the page. example: #1. (answer) #2. (answer) #3. (answer)