What the Founders Did Not See Coming: The Fourth Amendment, Digital Evidence, and the Plain View Doctrine

PdfPDF by Kaitlyn R. O’LearyFebruary-24-2013

Category: Current, Current Notes, Notes, Number 1, Print Edition, Volume 46


The development of digital technology has created a unique set of problems for courts attempting to determine whether certain practices pertaining to search and seizure of digital forensic evidence are violative of the Fourth Amendment.  The significant inherent differences between physical and digital property make a traditional application of the Fourth Amendment ill-fitting and unworkable.  Congress and the courts have attempted to grapple with the doctrinal inconsistencies that result from the physical-digital distinction by recognizing modifications in the practices, policies, and procedures that govern the search and seizure of digital evidence.  In the absence of well-defined  rules, however, courts are implementing widely varied and inconsistent approaches to determine whether the government violated the timing and particularity requirements of search warrants under the Fourth Amendment. . .

This Note will analyze the timing and particularity issues left unresolved by Congress’s 2009 amendment to Rule 41.  Part II.A will provide a history of the case law, highlighting the ambiguity surrounding the timeline requirements of Rule 41(e)(2)(B).  Part II.B will discuss how the lack of a particularity rule has forced the courts to confront the plain view doctrine’s application to digital evidence.  Part II.B will also examine the approaches that various circuit courts have taken to address this issue.  Part III will analyze the cases outlined in Parts II.A and II.B, as well as the various approaches courts have taken to address timing and the plain view doctrine’s application to digital evidence.  In addition, Part III will discuss how Congress’s failure to resolve these issues in its 2009 amendment is problematic for both defendants and examiners, as well as for judicial efficacy and the interests of justice.  Finally, this Note will propose amending Rule 41 to better serve defendants, examiners, and the judicial process. . .

Read the full Note here.

Author: Kaitlyn R. O’Leary


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