Private Searches of Computers

Experienced Military Defense Lawyer Assisting Service Members Worldwide

If you are facing potential charges involving allegedly illicit materials on your computer or other electronic devices, it is important to know the extent to which law enforcement can legally search those devices. With over 30 years of experience defending members of the armed forces who are under investigation worldwide, military defense attorney Phillip D. Cave can provide the legal counsel that you need before and during formal proceedings.

The Fourth Amendment and Private Citizens

The Fourth Amendment of the U.S. Constitution prohibits the government or an agent of the government, such as a law enforcement officer, from searching your property and personal belongings without a search warrant. Generally, if law enforcement desires to search through an individual’s personal belongings or property and collect items as evidence of a crime, they must obtain a search warrant from a judge.

Although there are a few exceptions that allow law enforcement to search without a warrant, the basic principle of the Fourth Amendment guarantees all citizens the right to be free from unreasonable searches and seizures of their property and personal belongings. This Fourth Amendment right, however, becomes more difficult to apply when a private party rather than a government actor is the party searching individuals’ property.

In most cases that have come before a court for review, a private party searches an individual’s computer or device, finds illicit or illegal material, and then turns that electronic device over to law enforcement. The question for many courts has been whether law enforcement has the right to search a computer or device without a search warrant after the computer was searched by a private citizen and subsequently given to law enforcement.

Depending on your location, different federal courts have come to different conclusions about this matter. The Fifth Circuit Court of Appeals (which is the federal appeals court for Louisiana, Mississippi, and Texas) has ruled that if an individual opens only one file in one folder on a computer, for example, that computer was searched. As a result, law enforcement has free rein and can search all of the files on the computer. The Seventh Circuit Court of Appeals (which is the federal appeals court for Illinois, Indiana, and Wisconsin) has reached the same conclusion.

However, the Sixth Circuit Court of Appeals (covering Kentucky, Michigan, Ohio, and Tennessee) and the Eleventh Circuit Court of Appeals (covering Alabama, Georgia, and Florida) have ruled differently. Those courts have concluded that law enforcement can only view the specific files and folders that the private individual viewed before turning the device over to law enforcement. Without a warrant, officers may not view any files that were not viewed by the private individual turning in the device. For example, if an individual views only one of two videos stored on a computer or electronic device, and then turns the device over to the police, investigating officers may only view the one video prior to obtaining a search warrant for the device. Officers are not free to view the contents of the second video without a warrant, since it was not viewed by the private individual.

Where Does the Military Fall?

In United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014), the court considered the private search doctrine to the accused’s cell-phone. The court affirmed suppression of evidence because the government exceeded the scope of the initial private search. The court further explored the seizure of evidence and held that the inevitable discovery doctrine did not apply. The Court of Appeals for the Armed Forces has approved evidence found in a private search, even when the person doing the private search was normally assigned military police duties. See for example, United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014).

Consult a Military Law Attorney to Protect Your Rights

If you are a service member under investigation or facing court-martial, a knowledgeable military lawyer may be critical in protecting your rights. Philip D. Cave has represented service members both nationally and internationally. He has assisted individuals stationed on bases in Norfolk, Fort Bragg, Jacksonville, Fort Hood, San Antonio, and San Diego, among others. He also represents military personnel internationally in countries such as Italy, Germany, Spain, England, Korea, and Japan. To schedule a free initial consultation, call 800-401-1583 or fill out the contact form on our website.