OUTLINE

1. Fourth Amendment (Define)
   1. Unreasonable searches and seizures by Government Agent (Presumed reasonable if there is a warrant)
      1. Requirement of Government Agent
         1. 2 Factors (US v. Jarrett - unknown user case)
            1. But permissible to reenact private search
      2. Exceptions (for each define and know the requirements)
         1. Auto
         2. Plain View (See below under Electronic Search Stage)
         3. Exigent Circumstances (US v. Trowbridge)
            1. SPLAWD
            2. Exigent circumstances searches must be strictly circumscribed by the exigencies which justify their initiation
         4. Border (level of suspicion for forensic searches)
            1. Particularized suspicion for computer/forensic search (US v. Cotterman)
            2. Other circuits
            3. Homeland security manual
         5. Search Incident to Lawful Arrest
            1. What about electronic devices? (Riley v. California)
         6. Consent
            1. Scope (US v. Al-Marri)
            2. When valid? Voluntary/knowingly
            3. Who must consent?
               1. Third Party (US v. Buckner)
               2. Apparent Authority (US v. Andrus)
         7. Special Needs - Government Workplace Searches
            1. When permissible? (Leventhal v. Knapek)
         8. Stop & Frisk
            1. What level of suspicion?
            2. What is permissible?
      3. Warrant Requirements
         1. Probable Cause (define) (United States v. Griffith)
         2. Oath/affirmation
         3. Particularity (United States v. Ulbricht)
            1. Particularly describing places to be searched/things to be seized
            2. Requirements?
         4. Neutral/detached magistrate
      4. Electronic Searches
         1. Physical Search Stage (US v. Hill)
            1. What's included?
         2. Electronic Search Stage
            1. Plain View? (US v. Williams)
               1. Remember circuits disagree!
      5. Ex Ante Restrictions on Warrants (In Re Cunnius)
         1. What's permissible/Where/Agreement amongst circuits?
   2. No warrant/exception -> ER unless
      1. Good Faith
      2. Independent Source
      3. Inevitable Discovery
   3. What is a search?
      1. Physical Realm
      2. Virtual Realm
         1. REP (define - remember Katz telephone booth case)
         2. Searches of standalone computers (US v. David)
            1. Remember to read and understand the examples of application of this rule in other circuits/cases in slides
         3. REP in physical movements so need a warrant to get info from carrier (Carpenter v. US)
         4. Non-Content Information (US v. Forrester)
         5. Content Information (US v. Warshak)
            1. Remember to distinguish as not all circuits in agreement
   4. What is a seizure?
      1. Taking pictures of information may constitute a 'seizure" because it freezes information in that form (US v. Jefferson)
2. Encryption (define/requirements)
   1. Usually a Fifth Amendment Issue (In Re Subpoena Duces Tecum)
   2. Exceptions?
      1. Physical Act
      2. Foregone Conclusion.
         

HYPOTH ETICAL On September 21, 2018, the FBI received an e-mail tip from an anonymous user (AU) that on September 23, 2018, a woman will be crossing the US-Mexico border at the El Paso/Juarez crossing into Texas with inappropriate images of children on her electronic devices. FBI Agent Smart attempted to communicate with AU and requested more information about the woman. The AU refused to provide more information or to identify him/herself. The FBI also could not trace the AU except to figure out that the IP address was somewhere in Italy. In a subsequent communication, agent Smart assured AU that AU cannot be prosecuted in the US and that if AU happens to come upon more information about this woman, it will really help the FBI identify and apprehend her. The FBI nevertheless alerted all US-Mexico border patrol regarding the information provided. On September 23, 2018, Justa Felloni, a US citizen, was crossing the US-Mexico border at the El Paso/Juarez border with her husband and 3 children. The Fellonis appeared to have quite a few electronic devices in the car, including 3 laptops and 6 tablets. Justa identified 2 of the laptops and 2 of the tablets as belonging to her. She stated that she uses one of each for work and the other for personal use. The border agents asked Justa to provide her passwords for the devices, but she refused citing her Fourth Amendment rights. The border agents also ran a search which revealed that Justa did not have any criminal history but that Jimmy, her husband, had a 15- year-old conviction as a sex offender. Although Jimmy did not indicate which devices were his, the agents seized the third laptop. The border agents released Justa and her family but retained the electronic devices which they sent to the nearby digital forensics lab approximately 10 miles away from the border. On September 24, 2018, AU contacted the FBI yet again, this time providing Justa's name as well as several images of child pornography AU said were found on Justa's desktop computer after AU received Agent Smart's last message. In the meantime, the forensic team imaged the Fellonis' devices that were confiscated at the border and found many images of children (mostly boys) in sexually suggestive positions. Based on the information obtained from these devices, a warrant for electronic devices as well as any other media that may contain images of child pornography was issued and executed on the Fellonis' residence on September 24, 2018. A desktop computer was not found in the home, however, agents noticed that there was a faint discoloration on Justa's desk around a spot where a desktop computer could have been. The FBI interviewed the neighbors who mentioned that they saw the Fellonis unpack the car after returning from their trip, but then Justa's husband Jimmy took out a large box and put it in their SUV. The SUV was parked in the carport and based on the information, the agents decided to go ahead and search it. Jimmy had a hard time finding the keys to the SUV, so the agents used a trick to prop it open. Indeed, inside the SUV, there was an iMac. The iMac was seized. The FBI asked the Fellonis to provide the password, which they refused. However, the FBI managed to bypass the password. Many images of child pornography were found on the iMac as well. The images on the iMac were more gruesome and showed Jimmy molesting some of the boys in the images. All the images matched the images that were found and sent to the FBI by AU. All other electronic devices in the home were also seized and searched. No other device was found to contain anything illegal. Justa and Jimmy were arrested and indicted