Fourth Amendment Satisfaction -- The 'Reasonableness' of Digital Searches

Texas Tech Law Review (Forthcoming)

28 Pages Posted: 3 Jun 2015 Last revised: 5 Mar 2016

See all articles by Thomas K. Clancy

Thomas K. Clancy

University of Mississippi School of Law

Date Written: June 2, 2015

Abstract

The Fourth Amendment regulates – at least in part – the search and seizure of such evidence. This article discusses the Supreme Court’s only major decision in this area, Riley v. California, 134 S. Ct. 2473 (2014), and its impact on the evolution of the judicial treatment of Fourth Amendment satisfaction issues regarding governmental efforts to obtain digital evidence. Prior to Riley, the Supreme Court provided virtually no guidance and there was a fundamental split in the lower courts on how to treat governmental acquisition of digital evidence. Two principal approaches emerged. One view asserts that a computer – or any digital device – is a form of a container and that the data in electronic storage in that device are mere forms of documents. A second view maintains that searches for data require a "special approach," which supports new Fourth Amendment rules to regulate searches and seizures of digital evidence. Underlying that approach, in large part, is a concern for broad searches akin to general searches and unfettered application of the plain view doctrine. In my view, the proper view is that data searches are governed by the same Fourth Amendment rules regulating containers and document searches. However, what the prevalence of the acquisition of digital evidence teaches us is that some of those traditional rules need to be rethought and modified – yet, they still regulate all searches and seizures. The Court’s decision in Riley is here used to illustrate that view within the context of searches incident to arrest.

Keywords: Fourth Amendment, digital evidence, search and seizure, criminal procedure

JEL Classification: K14, K40, K41

Suggested Citation

Clancy, Thomas K., Fourth Amendment Satisfaction -- The 'Reasonableness' of Digital Searches (June 2, 2015). Texas Tech Law Review (Forthcoming), Available at SSRN: https://ssrn.com/abstract=2613627 or http://dx.doi.org/10.2139/ssrn.2613627

Thomas K. Clancy (Contact Author)

University of Mississippi School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States
662-832-5244 (Phone)

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