The Private Search Doctrine and Digital Evidence

By: MRR Law Enforcement Blog

In this current digital era, nearly everyone carries around a small, personal computer at almost all times. With this, evidence of a crime can be captured, and deleted, with just one push of a button. It also means that law enforcement personnel are facing a rapidly evolving environment of digital evidence.

What should an officer do after receiving a phone call from a man concerned about photos he found on his roommate’s computer? Prior to the computer being viewed by a police officer, there have been no violations of the Fourth Amendment right against unreasonable search and seizure. This is because of the private search doctrine. The private search doctrine provides that the Fourth Amendment right to be free from unreasonable search and seizure is inapplicable to a search effectuated by a private person, not acting as an agent of the government. While this rule is not universally applicable, the Northern District of Ohio recently held that the private search doctrine applies to searches of computers.

The question then becomes, how can an officer react to the roommate’s report? Can the officer document the statements made by the concerned roommate? Sure. Should the officer consider the information in the determination of probable cause to secure a search warrant? Yes. If the individual shows the officer a photo, may the officer look at it? Of course. Can the officer ask the roommate to further search the computer to find more information? No. By acting at the instruction of the officer, the roommate would likely be acting as an agent of the government. This would mean that a government search was being conducted, not a private search. And ultimately the evidence found could be ruled inadmissible in a criminal trial. The line when a private search turns into a government search is an important one.

Law enforcement personnel need to stay up-to-date on the various laws applicable to digital evidence, or they risk rulings of inadmissible evidence. The private search doctrine is just one of those laws. It is also important to distinguish between the various formats of digital evidence. Electronic messages, such as emails and text messages, are protected by other laws, including the Stored Communications Act. The landscape of digital evidence will likely continue to evolve and shift for years to come.

For more information on the private search doctrine, see US v. Lichtenberger, 19 F. Supp. 3d. 753 (N.D. Ohio 2014).


For questions or more information on “The Private Search Doctrine and Digital Evidence,” contact:

David M. Smith, Esq.
MRR Law Enforcement Blog Editor

 


MRR Ohio Legislation Updates: October 2, 2015 – October 15, 2015

Notes from the House of Representatives:

  • H. B. No. 56 was considered for the third time and passed by the House of Representatives. It would amend O.R.C. §§ 124.11, 124.34, 329.021, 2953.36, 4121.21, 5123.08, and 5139.02 and enact section 9.73 to prohibit public employers from including on an employment application any question concerning the criminal background of an applicant, to prohibit a felony conviction from being used against an officer or employee when a public employer is undertaking certain employment practices, unless the conviction occurs while to officer or employee is employed in the civil service, and to remove the bar against sealing a conviction record when the victim is 16 or 17 years old. (Passed 9-30-15)
  • H.B. 330 was referred to the Committee on State Government. It would amend O.R.C. § 4117.08 and enact several new sections of the Revised Code to require an individual or entity to obtain an equal pay certificate when submitting a bid for a state contract or applying for a grant from a state agency. It would also require state agencies and political subdivisions to establish a job evaluation system to identify and eliminate sex-based wage disparities and prohibit an employer from retaliating against an employee who discusses their salary or wage rate with another employee. (Referred to committee 10-1-15)
  • H.B. 355 was introduced to amend O.R.C. §§ 1349.61, 4121.01, 4123.01, 4123.026, 4141.01, and 5747.01, and to enact several new sections of the Revised Code, to create a generally uniform definition of employee for specified labor laws and to prohibit employee misclassification under those laws. (Introduced 10-6-15)

Notes from the Senate:

  • Following passage by the House of Representatives, Sub. H. B. No. 56 was considered for the first time. It would prohibit public employers from including on an employment application any question concerning the criminal background of an applicant, prohibit a felony conviction from being used against an officer or employee when a public employer is undertaking certain employment practices, unless the conviction occurs while to officer or employee is employed in the civil service, and to remove the bar against sealing a conviction record when the victim is 16 or 17 years old. (Considered for first time 10-1-15)

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

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Make Your Training Dollars Count – How to Train on What Really Matters

By: Tami Zupkow Hannon, Esq.

I often get asked what topics to train on when faced with limited resources. These questions frequently overlap lawsuits alleging little or no training. It is virtually impossible to train on every possible situation. So how do you make those training dollars count?

The following areas draw the most lawsuits and are always good subjects for training:

  • Use of Force – the continuum, going up AND down the continuum in response to changing situations, the use of deadly force;
  • Providing Medical Care – recognizing and documenting an individual’s appearance and any medical care provided both in the corrections and arrest setting;
  • Report Writing – I’ll admit I have never seen a lawsuit alleging negligent report writing, but I have seen many a lawsuit stemming from a poorly written report. Review what should and should not be in a report;
  • Probable Cause for an arrest;
  • Seizures – determining when stops are appropriate and the limits of each type of stop – traffic, consensual, reasonable suspicion, warrant-less arrests;
  • Searches – what searches go with what seizures – frisk, inventory, incident to arrest, etc., executing a search warrant;
  • Interactions with the Disabled – this issue is becoming more prevalent. Discuss how to recognize and respond to someone with a medical or mental health issue;
  • Evidence – handling, preserving and logging, scene preservation;
  • Harassment and Discrimination – in interactions with citizens, arrestees, detainees and prisoners, AND coworkers;
  • Internal Reviews and Investigations – designate and train appropriate officers on conducting internal reviews of incidents to ensure policies are followed and appropriate discipline given.

Outside of (or even within) these areas, review the calls you routinely handle and the most frequent situations that arise. Train your officers on handling those calls. Next, look to the less frequent but larger issues – perhaps non-English speakers, rapes, or shootings – and train officers to manage those as well. Training on the most infrequently occurring issues can similarly be less frequent.


For questions or more information on “Make Your Training Dollars Count – How to Train on What Really Matters,” contact:

Tami Hannnon


Tami Zupkow Hannon
  – MRR Cleveland
Phone: 440.424.0009
Fax: 440.248.8861
Email: thannon@mrrlaw.com

 

 

MRR Ohio Legislation Updates: September 16 – October 1, 2015

Notes from the House of Representatives:

  • H.B. 334 was introduced to amend O.R.C. §§ 1901.20 and 1907.02 and enact section 4511.072 to specify the jurisdiction of municipal and county courts over municipal traffic ordinances and to establish requirements governing fines, fees, or other charges for traffic violations and infractions imposed by a municipal corporation that does not have authority to establish a mayor’s court. (Introduced 9-22-15)

Notes from the Senate:

  • H.B. 180 was referred to the Committee on Government Oversight and Reform. H.B. 180 would enact O.R.C. § 9.49 and repeal sections 153.013 and 5525.26 to prohibit a public authority from requiring a contractor to employ a certain percentage of individuals from the geographic area for a construction or professional design of a public improvement. (Referred to committee 9-17-15)
  • S.J.R. 3 was referred to the Committee on Finance. S.J.R. 3 would enact section 2t of Article VIII of the Constitution of the State of Ohio to permit issuance of general obligation bonds to fund sewer and water capital improvements. (Referred to committee 9-17-15)
  • H.B. 210 was referred to the Committee on State and Local Government. S.B. 210 would amend O.R.C. § 5575.01 to increase the monetary threshold above which competitive bidding is required for township road, construction, repair or maintenance projects. It would also increase the monetary threshold above which a force assessment is required for a township road project. (Referred to committee 9-17-15)

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus

Phone:440.424.0005
Email: spollock@mrrlaw.com

 

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