2013). Social Security Disability: Who Is Eligible? 2001), the Fifth Circuit found that the private search of one file on a disk allowed a private party to turn over the entire disk to the government for a warrantless search. 2013). However, even if a search is initially found to be a solely private search, the individual user’s expectation of privacy is not necessarily extinguished. See Jacobsen, 466 U.S. at 115. A finding that a search is solely done by a private party or employer, even when the evidence or information is turned over to law enforcement, will not trigger Fourth Amendment protections. Understanding this is crucial to determining whether a person has an expectation of privacy in searches of computers or cell phones provided by an employer or other third party. 2013). Instead, courts must consider the totality of the circumstances in each specific scenario to determine whether there is an expectation of privacy in a particular item searched or seized by law enforcement. For example, a search of an employer-owned electronic device by a government employer for a non-investigatory, work-related purpose does not require a probable cause warrant and need only be “reasonable.” City of Ontario v. Quon, 130 S.Ct. A few years later, in United States v. Robinson, 414 U.S. 218 (1973), the Court approved the warrantless search of a pack of cigarettes found in an arrestee’s pockets under that exception. A. Even these sorts of non-criminal searches must be “reasonable,” and expansive searches motivated by a desire to investigate criminal, rather than civil, liability may violate the Fourth Amendment. at 2488). Ownership is not a requirement of “possession”; a person need only show “dominion and control” over an item in order to demonstrate a possessory interest in it. at 955 (Sotomayor, J., concurring). 1999) (citing Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. 945 (2012), the FBI installed a GPS tracking device onto Jones’ car and tracked his movements over 28 days. United States v. Lopez-Cruz, 730 F.3d 803, 805-06, 808 (9th Cir. One of the most pressing challenges the courts currently are confronting is how to apply the Fourth Amendment’s legal protections, conceived of in the 18th century, to this century’s modern electronic devices and data. Similarly, the Eleventh Circuit has explained “[c]omputers are relied upon heavily for personal and business use. Whether the defendant was legitimately on the premises. These include: In Finley, the Fifth Circuit found an employee could assert an expectation of privacy in a cell phone issued to him by, and belonging to, his employer, which he was permitted to use for personal purposes. at 350. 2473 (2014), the court was confronted with the issue of whether police could search the data on a cell phone incident to arrest. 22 Id. Be aware, though, that just because a warrant may not be required for some government actors does not mean the Fourth Amendment doesn’t apply. But a lot can change in 30+ years. at 961-63 (Alito, J., concurring). 2074, 2084 (2011). Groh v. Ramirez, 540 U.S. 551, 557 (2004). at 2488. 75, 104 (1994)). For example, in United States v. Crist, a private party took a computer, thought to be abandoned, home with him; while looking through its contents, he discovered child pornography and called the police.
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