Consent Searches: No Exceptions/No Suspicion Required & Search of Electronic Data/Electronic Surveillance Flashcards
Can the passenger of your car give consent to search your car?
Yes
Why is Consent so expansive?
□ Don’t need to know that you have a lawful right to refuse consent in order to consent
-Knowing and intelligent waiver does not apply to these because those requirements are for a fair criminal trial
Standard applied to consent, like in Shenkloth
Voluntariness
Voluntariness Standard for Consent
® State has burden
® Product of free and unconstrained choice or will was overborne and his capacity for self-determination
Reasonableness of Consent by Someone other than the owner of the home
□ Consent of one person present is enough
- Reasonable to let someone in if they have actual authority
- If police reasonably believe that someone has apparent authority to consent, entry is ok
When is there too much pressure for consent?
□ Misstatement of power may be coercion
® If they lack probable cause and say they will get a warrant is more coercive than if they actually do have PC
2 parties have authority over the home. One consents and the other doesn’t for a search:
◊ Police cannot enter when one with authority (who is present) says no
Can police enter when non-consenting individual is arrested and moved to holding?
® Court said it is ok to enter when the non-consenter is not present
Is consent all or nothing in terms of what can be searched?
You can delineate what can and cannot be searched, but have to be abundantly clear
Title III Stored Communications Act Regulates
Non-consensual Interceptions
A Title III Warrant is Different from a regular warrant in what ways?
◊ Have to show other less intrusive investigative techniques are dangerous or couldn’t happen
◊ Minimization requirement of what is searchable to the illegal conduct or the particularities in the scope of the warrant
◊ Have to provide a post-surveillance notice to the surveyed
◊ Have to update judge about how intercept is going
◊ Controls about dissemination of evidence or info obtained
Exceptions & Limits to Title III
◊ Not much reach beyond US
◊ Exigency
◊ Do not need warrant if one of the parties consent
-If the provider does monitoring for business purposes
-have to update judge within 10 days
Particularity Requirement of Title III Warrant - “persons yet unknown” - is this ok?
} Its ok - judge was updated within 10 days
◊ Have to relax particularity requirement for future convos you stumble upon
Do you have REOP in content of e-mails stored on third party servers?
Yes - Need a Warrant - objectively reasonable
– Court says subscriber agreement and giving info to 3rd party still wasn’t a waiver of right to privacy
-These people are an intermediary like a post office delivery person
-An email is more similar to a letter
– Content of email is much too personal
What does the Stored Communications Act (SCA) allow?
} Emails stored over 180 days are treated differently as abandoned; less then you need traditional warrant or subpoena
