to Conduct a Forensic Search of a Digital Device at the Border

The rise of electronic devices like laptops and smartphones brought new questions to the border search doctrine. Are electronic devices like vehicles, which require no reasonable suspicion to warrantlessly search at the border? Or are digital devices more like invasive searches of a person? Does the type of search – manual or forensic – require different levels of suspicion to execute?

“Surreptitious DNA sample” refers to the collection and analysis of DNA from a person without the person’s knowledge and without coercion. For example, the police may swab a suspect’s DNA from a discarded cigarette. Oded Oren outlines an argument for suppressing the DNA information extracted from the analysis of surreptitiously obtained DNA rather than suppression of the DNA itself or the physical object from which it was obtained.

“Surreptitious DNA sample” refers to the collection and analysis of DNA from a person without the person’s knowledge and without coercion. For example, the police may swab a suspect’s DNA from a discarded cigarette. Oded Oren outlines an argument for suppressing the DNA information extracted from the analysis of surreptitiously obtained DNA rather than suppression of the DNA itself or the physical object from which it was obtained.

Nearly every case involves a cell phone or an online account. Laws on device and account searches are continuing to evolve, as courts reconsider old doctrines that do not fit with the realities of the digital age. Below, find sample motions on suppressing emails, passcodes, and other electronically stored information.

Defense attorney Elliot Abrams discusses a Fourth Circuit case that rejects the use of filter or taint teams after a law office search. He uses this case to develop a road map for lawyers to follow to protect client confidences in response to subpoenas or seizures of client files by the government.

It is intolerable when a detainee is arrested and confined on trumped up charges based on police fabrication of evidence. The U.S. Supreme Court, however, has granted pretrial detainees an important remedy. Manuel v. City of Joliet, Illinois held that when pretrial detention is based on police fabrication of evidence, the detainee may assert a claim for relief under 42 U.S.C. § 1983.

Comments to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed amendments to the Federal Rules of Criminal Procedure.

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to procedures in the Foreign Intelligence Surveillance Court.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for a Writ of Certiorari).

Argument: The Fourth Circuit’s holding in this matter warrants review for the additional and important reason that that it allows officers to conduct searches for weapons despite the fact that the officers’ reasonable suspicion went only to drug use. Blanket rules of reasonable suspicion based upon drug use alone violate this Court’s precedent and the Fourth Amendment, which require greater respect for individual liberty from search and seizure. Moreover, as this Court articulated in Richards v. Wisconsin, stereotypical inferences about drug use and firearm risk create both “over-generalization” and bootstrapping concerns that would allow the reasonable suspicion requirement to expand so broadly that it would provide no meaningful check on potential Fourth Amendment violations. Finally, the Fourth Circuit’s holding denies Petitioner independent appellate review (i.e., without deference to the trial court determination) of ultimate determinations of reasonable suspicion, as this Court requires pursuant to Ornelas v. United States.

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to the Federal Rules of Criminal Procedure and Federal Rules of Evidence.

Letter to the Judicial Conference Standing Committee on Rules of Practice & Procedure regarding proposed rule changes to the Federal Rules of Criminal Procedure.

This month Gail Gianasi Natale reviews The Pretender: My Life Undercover for the FBI by Marc Ruskin.

In cases where the government has accessed data about a defendant that was subject to a phone company or internet service provider privacy policy, that data was something that belonged to the defendant. When the data was seized and then searched, it affected a real legal interest held by the defendant. Defense counsel should put the privacy policies and terms of service statements of such providers into the trial record. It creates a foundation for arguing that defendants have property rights in their digital papers and effects.

The U.S. Supreme Court has yet to rule whether nonphysical surveillance, such as cellular GPS tracking, constitutes a search. Although the Court in Riley v. California required police to obtain a warrant to search a cellphone incident to arrest, it did not address the requirements for tracking. No definitive legal standard for gathering cellular location data exists. Adding to the judicial divide is the lack of relevant statutes. Will the courts or Congress step in to address the legislative void?