Get ready for the subpoena for computers

gavel2 1 With the advent of personal computers, the courts have had to develop law on how to apply the Fourth Amendment prohibition against unreasonable searches and seizures to police efforts to obtain evidence from computers. How search warrants to obtain such information fit within the constitutional scheme was explored by Maryland’s intermediate appellate court in an opinion issued this week in a case called John Fone v. State of Maryland.

The opinion indicates that the Child Exploitation Unit within the Special Victim Investigation Division of the Montgomery County Police Department received information about an image of child pornography attached to an e-mail on a gmail account that was provided by Google. The police obtained a warrant to search the suspect’s home. When they went to the home, they were allowed in and interviewed the suspect. He identified his gmail account, and admitted accessing pornography and fantasy chat rooms about sexual activity with children, but denied having exchanged child pornographic images or videos.
The suspect gave consent to the police to search his lap top, and a manual search produced what the officer determined was an image of child pornography. The police then produced their search warrant and seized the computer and a hard drive. Analysis of the computer produced ten images of child pornography, and Fone was arrested. The trial court denied his motion to suppress the images, and a jury convicted him of ten counts of distribution of child pornography, and he appealed.
The Court of Special Appeals noted that the standard for addressing challenges to a warrant is whether the issuing judicial officer had a substantial basis to conclude the application for the warrant was supported by probable cause. The defense argued the warrant was improper because it was based on stale information. In this case, the information from Google was only 10 weeks old, and the Court found that the information was not so stale that it could not be used for probable cause to seek the warrant.
Suppression of the warrant would be appropriate only if the officers were dishonest or reckless in preparing the affidavit or could not objectively have had a reasonable belief in the existence of probable cause. Here there was no such showing, and the issuance of the search warrant was held to be proper.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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