Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

A large portion of government searches and seizures today involve the seizure and search of electronic media and information. The manner in which such searches and seizures of electronic media and information are conducted can become critically important afterwards if criminal proceedings are instituted. Well on Tuesday, the U.S. Department of Justice's Office of Justice Programs announced the publication of Electronic Crime Scene Investigation: An On-the-Scene Reference for First Responders by the National Institute of Justice, and may be viewed in its entirety on OJP's website. The publication is a guide for first responders responding to electronic crime scenes, and is a companion to an earlier publication, Electronic Crime Scene Investigation: A Guide for First Responders, Second Edition.

The publication is available as a "flip book" which agents may consult on-scene during investigations and searches. It describes the types of electronic devices, guidelines for securing and evaluating a scene, guidelines for packaging and transporting digital evidence, and special considerations for electronic and digital crime evidence by type of crime. The guide instructs investigators, among other things, to:

*Document, photograph and secure digital evidence.

*Not to alter any electronic device.

*To exclude unauthorized persons from the area where the evidence is being collected.

 

*To interview witnesses regarding the use and users of any computers or devices.

*To document various facts relating to the electronic devices, as well as to video, photograph or sketch the scene.

 

*Not to alter devices or attempt to explore them on the scene, or even to press a key or click a mouse.

The OJP publication may prove of great assistance to defense practitioners in attempting to suppress the fruits of searches and seizures of electronic information and media. Counsel should carefully review the facts of any search and seizure of such evidence and interview all witnesses to any search and seizure to ascertain whether these procedures have been followed.

• Email This
• Print
• Comments
• Trackbacks

Though apropos of absolutely nothing for January 13, 2010, I recently came across an interesting fact in my research of some Consititutional issues. The case in question is Mapp v. Ohio, 367 U.S. 643 (1961), which applied the exclusionary rule to the states through the Fourteenth Amendment. The fascinating fact of note is that the investigation and unlawful search of the residence of Dollree Mapp, of Cleveland, Ohio, began as a result of a tip from now famous boxing promoter, Don King, who had been the victim of a fire-bombing and his cooperation against a local member of the numbers racket caused the search of Ms. Mapp's residence. Of course, no evidence of any bombing was found in Ms. Mapp’s residence, rather she was prosecuted for possession of obscene material. See State v. Mapp, 166 N.E. 2d 427 (1960).

Of course, Don King went on to wealth and fame as a boxing promoter and was twice acquitted in federal criminal trials, and coined the famous phrase, “Only in America,” following his first acquittal.

 

• Email This
• Print
• Comments
• Trackbacks

As reported in LegalWeek.com, Russian authorities raided the Moscow offices of U.S. law firms White & Case and DLA Piper on Tuesday and seized documents relating to an $87.5 million fraud case involving the Hotel Moskva, one of Moscow' finest hotels.
 

The firms issued statements stating that the searches related to activities of the firms’ clients and not the firms, their Moscow operations or their employees. They insisted that their Moscow offices are now operating normally. The searches were apparently among many others Russian authorities have performed across Moscow.
 

Russian authorities apparently also raided American law firms last August, prompting the International Bar Association to urge the Russian government to protect lawyer’s rights.

All of which raises a question of how domestic entities with offices and personnel abroad, including law firms, react to searches and seizures by foreign authorities. The only pronouncement from the Supreme Court which we were able to uncover relating to the subject is from U.S. v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056 (1990), in which DEA agents searched residences in Mexico belonging to an alien involved in drug trafficking. The majority opinion, authored by late Chief Justice Rhenquist, held “the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters.” Id. at 267. The Court noted that “[f]or better or for worse, we live in a world of nation-states in which our Government must be able to “functio[n] effectively in the company of sovereign nations.” Id. at 275 (quoting Perez v. Brownell, 356 U.S. 44, 57, 78 S.Ct. 568, 575 (1958)).

Some countries have protections similar to the Fourth Amendment, but many others do not. American businesses doing business abroad which have concerns regarding potential searches or seizures, or even criminal proceedings, should consult with counsel, including foreign counsel or counsel familiar with applicable laws.
 

• Email This
• Print
• Comments
• Trackbacks

Today the Eleventh Circuit held in United States v. Carter, No. 08-14460, that a search of the home of a probationer is reasonable under the Fourth Amendment, if supported by reasonable suspicion. Carter was on probation in 2007, however, his probation did not contain a Fourth Amendment waiver provision. His probation officer though, was suspicious that his lifestyle could not be supported by the unskilled labor he performed and he, along with other probation officers, searched Carter’s town home, which lead to him being charged with possession with intent to distribute crack and possession of a firearm by a convicted felon.

Carter moved to suppress the evidence discovered during the warrantless search. Relying on the balancing test set forth in United States v. Knights, 534 U.S. 112 (2001), Judge Carnes writing for the Court, noted that the Knights case first addressed the probationer’s individual privacy interests - in short - not much. Then Judge Carnes addresses the “governmental interests at stake” - in short - for a guy like Carter - prior violent crime and drug conviction - “the government’s interest in monitoring the probationer is particularly high.” This may be a common sense conclusion, but Judge Carnes draws this conclusion virtually out of thin air, citing only U.S.S.G. 4B1.1(a)(providing enhanced penalties for criminals with a history of drug felonies or crimes of violence). However, U.S.S.G. 4B1.1 says nothing about probationers, or the government’s interest in monitoring them more closely. 

Judge Carnes ultimately holds that “the search in this case need only be supported by reasonable suspicion to be reasonable under the Fourth Amendment” and that the search of Carter’s home was permissible.

• Email This
• Print
• Comments
• Trackbacks

Yesterday the Eleventh Circuit reversed the trial court’s denial of a motion to suppress in an internet child porn case. As we all know, reversals in the Eleventh Circuit are as rare as hen’s teeth. This case United States v. Mitchell, No. 09-10791, here, arises out of Savannah and was handled by our good friend Steve Beauvais of Zipperer, Lorberbaum and Beauvais. Mitchell entered a guilty plea, was sentenced to 78 months in prison, but preserved his right to appeal the denial of the motion to suppress.

On February 27, 2007 an ICE agent and FBI agent went to Mitchell’s house to conduct a knock and talk related to a child porn investigation. The agents asked Mitchell if he had purchased any subscriptions to porn websites and he said yes. When they asked him if any of his computers contained contraband, he said “yes, probably.” When they asked Mitchell if his computer contained child pornography, he said, “yes, probably.” The agents, had Mitchell execute a “Consent to Search” form, examined his computer, then seized it.

The seizing agent took Mitchell’s computer back to his office, then departed on a 2 week ICE training course. Twenty one days after the seizure, he presented an application for a search warrant to search the seized computer to the magistrate judge who issued the warrant. Child pornography was found on the computer during a forensic exam.

Mitchell moved to suppress based in part on the unreasonable delay in obtaining a search warrant. The magistrate denied the motion to suppress. Beauvais then appealed to the district judge, who adopted the magistrate’s report and recommendation. The appeal to the Eleventh Circuit followed.

In a fairly narrow holding, the Eleventh Circuit reversed the district court finding that the 21 day delay in obtaining the search warrant under the circumstances presented, was not reasonable and ordered that the evidence seized be suppressed.

• Email This
• Print
• Comments
• Trackbacks

In Arizona v. Gant, 07-542, the Supreme Court held on Tuesday that police may search a car incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment or the officers have a reasonable belief that the car contains “evidence of the offense of arrest.”

Demonstrating that the wheels of justice do indeed turn slowly, the Supreme Court affirmed the Arizona Supreme Court suppressing evidence found in Gant’s car when he was arrested for driving with a suspended license in 1999. The state court held that Gant could not have reached his car during the search and posed no safety threat to the officers, making a vehicle search unreasonable under the “reaching-distance rule” of New York v. Belton, 453 U.S. 454 (1981).

Scotus blog’s excellent discussion of the Gant case comments that Justice Scalia’s concurrence was clearly the swing vote in the 5-4 decision and that Justice Scalia suggests that the court abandon the “charade of officer safety” rule pronounced by the court earlier in Belton, for the rule that the majority ultimately adopts in its opinion.

This is an important decision for our citizens and for the every day practitioners of criminal law because it effectively extinguishes the “search incident to arrest” that we see in virtually all cases involving cars.

• Email This
• Print
• Comments
• Trackbacks

  In criminal cases involving non-administrative searches and seizures on corporate or commercial property, defense practitioners who represent officers or employees of the corporation will sometimes face the contention by the government that the officer or employee does not possess standing to challenge the search and seizure. Following is an analysis of Eleventh Circuit Court of Appeals and former Fifth Circuit Court of Appeals decisions in this area, and suggestions as to what the practitioner should argue when confronted with such contentions.

   The Supreme Court of the United States, in Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120 (1968), held that the protections of the Fourth Amendment “may extend to commercial premises,” id. at 368 (citing See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737 (1967); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153 (1932); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182 (1920)). “It has long been settled that one has standing to object to a search of his office, as well as of his home.” Id. at 369 (citing Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261 (1921); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420 (1932); Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993 (1942); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381 (1963); Osborn v. United States, 385 U.S. 323, 87 S.Ct. 439 (1966)). “‘[C]apacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion.’” Id. at 368 (quoting Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967)).

    Similarly, the Eleventh Circuit Court of Appeals and former Fifth Circuit Court of Appeals have held that “a corporation has the same rights as a natural person to be free from illegal searches and seizures…” Henzel v. United States, 296 F.2d 650, 652 (5th Cir. 1961) (citing Silverthorne Lumber Co., 251 U.S. 385). “[U]nder certain circumstances a corporate officer or employee can be a person aggrieved by a search of corporate premises and a seizure of corporate property.” United States v. Britt, 508 F.2d 1052, 1055 (5th Cir. 1975) (citing Henzel, 296 F.2d 650); see also United States v. Delgado, 903 F.2d 1495, 1501 (11th Cir. 1990) (“in certain circumstances, an employee has standing to challenge searches conducted in his place of employment”) (citing Mancusi, 392 U.S. 364). “A person possesses standing when he has a reasonable expectation of privacy from governmental intrusion in either the premises searched or the items seized.” Delgado, at 1501 (citing Mancusi, at 368). “This is not to say that every employee of a corporation can attack the illegal seizure of corporate property if the fruits of the search are proposed to be used against him. Each case must be decided on its own facts.” Henzel, at 653.

   Moreover, “even where a defendant does not own the property searched, he or she may nonetheless have a reasonable expectation of privacy in that place by virtue of his or her relationship with that place.” United States v. Chaves, 169 F.3d 687, 690 (11th Cir. 1999) (citing Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 474, 478-79 (1998); Minnesota v. Olson, 495 U.S. 91, 96-100, 110 S.Ct. 1684 (1990); O'Connor v. Ortega, 480 U.S. 709, 714-19, 107 S.Ct. 1492 (1987)). Furthermore, “‘where the defendant’s possession was the object of the search, the defendant has standing to challenge the search even though he does not have an expectation of privacy in the premises searched.” Delgado, 903 F.2d at 1502 (citing United States v. Alewelt, 532 F.2d 1165, 1167 (7th Cir. 1976); Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir.1987)).

Gillen Withers & Lake LLC are white collar and corporate criminal defense attorneys with an outstanding reputation and track record, handling cases throughout Georgia and the nation. Call our Atlanta, Georgia, office at (404) 842-9700 or our Savannah, Georgia, office at (912) 447-8400.

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

As set forth in a detailed article in the National Law Journal, the Fourth Circuit and Ninth Circuit Court of Appeals have recently affirmed decisions upholding warrantless, suspicionless searches of laptop computers at international airports. See United States v. Arnold, 523 F.3d 941 (9th Cir. 2008), petition for reh'g en banc filed, No. 06-50581 (9th Cir. June 2, 2008); United States v. Ickes, 393 F.3d 501 (4th Cir. 2005). Courts have compared warrantless searches of laptops in customs inspections at a border or international airport to warrantless searches of luggage, suitcases, briefcases, pockets, papers and filmsat such locations.The government's power to conduct border searches is plenary, and does not require a warrant, probable cause or reasonable suspicion. See United States v. Montoya de Hernandez, 478 U.S. 531, 538 (1985). The United States Supreme Court has suggested that only some types of searches of persons, or searches carried out in a particularly "offensive" manner, might be unconstitutional. See Montoya,at 538-40; United States v. Ramsay , 431 U.S. 606, 618 n.13 (1977). No district court has yet ruled on whether the government must possess reasonable suspicion to search electronic data at the border, since all cases thus far in which the issue has arisen have held that reasonable suspicion to search existed (all have so far involved child pornography). See United States v. Irving, 434 F.3d 401 (2d Cir. 2005); United States v. Bunty, No. 07-641, 2008 WL 2371211, at *3 (E.D. Pa. June 10, 2008); United States v. McAuley, No. DR-07-CR-786(1), 2008 WL 2387979, at *4-*6 (W.D. Texas June 6, 2008). Defendants have attempted to distinguish computers from other personal property because of the massive amounts of data they can hold, invoking the First Amendment for expressive material, so far to no avail.

Other countries including the United Kingdom, Canada, Australia and China have conducted similar searches. All these cases have caused companies growing concern about how to protect their confidential information from the prying eyes of government agents. Several are putting policies in place to limit the electronic information officers and employees may take with them when they travel.

Congress may be preparing to take action, however. In June the Senate Judiciary Committee's Subcommittee on the Constitution held a hearing on border laptop searches entitled "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel." Subcommittee Chairman Senator Russ Feingold of Wisconsin expressed the view that the border-search exception to the warrant requirement should be limited. Witnesses before the Subcommittee recommended legislation requiring reasonable suspicion for laptop searches and probable cause for seizure of data, limits on the duration and location of such searches, and more express policies regarding searches and seizures by  United States Customs and Border Patrol.

• Email This
• Print
• Comments
• Trackbacks