Why the Plain View Doctrine Should Not Apply to Digital Evidence

Abstract:     
This paper argues that the plain view doctrine, an exception to the Fourth Amendment, should not apply to digital evidence. Searches pursuant to warrants for digital property are easily transformed into general searches of a suspect's digital property because police, by necessity, must perform a comprehensive search of a suspect's digital property in order to properly execute a digital property warrant. Courts have already begun to apply the plain view doctrine in a manner that allows police to use anything found during a search of digital property (e.g., computers) as evidence of crimes beyond the scope of the warrant. General searches are proscribed by the Fourth Amendment. Therefore, courts should stop applying the plain view doctrine to digital evidence.

Keywords: Plain View Doctrine, Plain View, Fourth Amendment, Search, Seizure, Evidence, Digital Property, Digital Evidence, General Searches, General Warrants

JEL Classifications: K14, K49

Accepted Paper Series