Search Warrants in an Era of Digital Evidence
Orin S. Kerr
George Washington University - Law School
November 19, 2011
Mississippi Law Journal, Vol. 75, p. 85, 2005
This Article contends that the legal rules regulating the search warrant process must be revised in light of the demands of digital evidence collection. Existing rules are premised on the one-step process of traditional searches and seizures: the police obtain a warrant to enter the place to be searched and retrieve the property named in the warrant. Computer technologies tend to bifurcate the process into two steps: the police first execute a physical search to seize computer hardware, and then later execute a second electronic search to obtain the data from the seized computer storage device. The failure of law to account for the two-stage process of computer searches and seizures has caused a great deal of doctrinal confusion, and makes it difficult (if not impossible) for the law to regulate the warrant process effectively. The Article concludes by offering a series of proposed amendments to Rule 41 of the Federal Rules of Criminal Procedure to update the warrant process for the era of digital evidence.
Number of Pages in PDF File: 61
Keywords: Fourth Amendment, computers, Rule 41
JEL Classification: K14, K30, K42Accepted Paper Series
Date posted: February 11, 2005 ; Last revised: November 21, 2011
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