Why the Plain View Doctrine Should Not Apply to Digital Evidence

Suffolk Journal of Trial and Appellate Advocacy, Vol. 12, pp. 31-67, Spring 2007

37 Pages Posted: 6 Dec 2006  

RayMing Chang

George Washington University Law School

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 Classification: K14, K49

Suggested Citation

Chang, RayMing, Why the Plain View Doctrine Should Not Apply to Digital Evidence. Suffolk Journal of Trial and Appellate Advocacy, Vol. 12, pp. 31-67, Spring 2007. Available at SSRN: https://ssrn.com/abstract=949575

RayMing Chang (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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