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321_wk2_activities.docx
321_wk2_discussion.docx
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Week 2 Activities
Exposure to
Dubert and Frye to understand what is an expert?
Case review to determine warrant particulars.
Have participants provide definitions for:
Workplace
Privacy
Employer
Network
Malware
Virus
Plain view
Wireless
Unreasonable
Consent
Wiretap
Expectation
Warrantless
Exigent
daubert v merril 1993 509_U.S._579,_113_S._Ct._2786,_125_L._Ed.
frye v united states 1923 293_F._1013,_54_App._D.C._461923_U.S._App._
Discuss the effect of at least one the following forensic issues on your practice?
Mincey v. Arizona
437 U.S. 385, 392-393 (1978)
forensics
issue
Petitioner was arrested during a drug raid in his apartment when one of the officers
was shot and killed. The Arizona Supreme Court reversed his conviction for murder
and assault on state grounds, but affirmed his conviction for three narcotics
offenses under a “murder scene exception.” On petition for certiorari, the court
reversed. Except for the fact that the offense under investigation was a homicide,
there were no exigent circumstances. Petitioner was wounded and taken to the
hospital. There was no indication that evidence would be lost, destroyed, or
removed during the time required to obtain a search warrant, and a police guard at
the apartment minimized that possibility. The seriousness of the offense under
investigation itself did not create exigent circumstances of the kind that, under the
Fourth Amendment, justified a warrantless search. The “murder scene exception”
was inconsistent with the Fourth and Fourteenth Amendments, and the warrantless
search of petitioner’s apartment was not constitutionally permissible simply because
a homicide had recently occurred there.
forensics
decision
A “murder scene exception” to the warrant requirement was inconsistent with the
Fourth and Fourteenth Amendments. A warrantless search of a suspect’s apartment
was not constitutionally permissible simply because a homicide had just occurred
there
United States v. Matlock
415 U.S. 164 (1974)
forensics
issue
The question before the Court was whether the evidence presented by the
government with respect to the voluntary consent of a third party to search
defendant’s living quarters was legally sufficient to render the seized materials
admissible in evidence at defendant’s criminal trial for bank robbery. The Court
reversed the judgment, finding that the government had proven the third party’s
actual authority to consent to the search. The Court noted that defendant’s own
out-of-court admissions would have surmounted all objections based on the
hearsay rule both at the suppression hearings and at the trial itself, and would have
been admissible for whatever inferences the trial judge could have reasonably drawn
regarding joint occupancy of the east bedroom. The Court also noted that, under
the circumstances, there was no apparent reason for the trial judge to distrust the
evidence and to exclude the third party’s declarations from his own consideration.
Finally, the Court noted that because the third party was a witness for defendant at
the suppression hearing, she was available for cross-examination. Thus, the risk of
prejudice, if any, from the use of hearsay was reduced.
Davis v. Gracey
111 F.3d 1472, 1480 (Tenth Cir., 1997)
forensics
issue
Following appellant computer system operator’s conviction for violation of state
obscenity laws and civil forfeiture of computer equipment, appellant operator and
several electronic mail users brought an action against appellee police officers.
forensics
issue
Appellants alleged claims under the Privacy Protection Act (PPA), 42 U.S.C.S. §§
2000aa – 2000aa-12, and the Electronic Communications Privacy Act (ECPA), 18
U.S.C.S. §§ 2510 – 2711, and under 42 U.S.C.S. § 1983 for violation of U.S. Const.
amends. I and IV rights. The court affirmed the grant of summary judgment in favor
of appellees. The court held that the warrant authorizing seizure of the computer
system was sufficiently particular and was not overly broad. The incidental
temporary seizure of stored electronic materials did not invalidate the seizure of the
computer system. Further, appellees’ reliance on a valid warrant entitled them to
qualified immunity on the constitutional claims and to the statutory good faith
defenses contained in the PPA and ECPA. The court dismissed the PPA claim for lack
of subject matter jurisdiction.
Katz v. United States
389 U.S. 347 (1967)
forensics
issue
Defendant was convicted of transmitting wagering information by telephone in
violation of a federal statute. At the trial, the government was permitted, over
defendant’s objection, to introduce evidence of defendant’s end of telephone
conversations, which was overheard by FBI agents who had attached an electronic
listening and recording device to the outside of the public telephone booth where he
had placed his calls. A court of appeals, in affirming his conviction, rejected the
contention that the recordings had been obtained in violation of U.S. Const. amend.
IV because there was no physical entrance into the area occupied by defendant. The
Supreme Court reversed, finding that a person in a telephone booth could rely upon
the protection of U.S. Const. amend. IV. One who occupied a telephone booth, shut
the door behind him, and paid the toll that permitted him to place a call was entitled
to assume that the words he uttered into the mouthpiece would not be broadcast to
the world. The Court determined that the government agents ignored the procedure
of antecedent justification, which was a constitutional precondition of th e kind of
electronic surveillance involved in the case.
Consent
Lewis v. United States
385 U.S. 206 (1980)
forensics
issue
An undercover officer contacted defendant and inquired about purchasing drugs.
Defendant invited the officer to his home, allowed the officer inside, discussed
future transactions, and sold the officer some marijuana. The officer went to
defendant’s home a second time and purchased additional drugs. Defendant was
convicted of transfer of marijuana, in violation of 18 U.S.C.S. § 4742(a). Defendant
appealed, and the appellate court affirmed. Defendant sought certiorari, and argued
that the drugs and the statements made to the officer should have been suppressed
because the consent was invalid. The court granted certiorari and affirmed the
appellate court. The court held that under certain factual situations, consent for an
officer to enter a suspect’s home could be invalidated by fraud or coercion. The
court held that defendant’s consent was valid because he invited the officer into his
home to conduct an illegal transaction, and that to hold otherwise would unfairly
hamper law enforcement officers. The court held that defendant could not argue
that an entry to his home was entitled to stricter scrutiny because he was using his
home as a business.
Plain view
forensics
title_citation
United States v. Reyes
forensics
call number
forensics
title_citation
922 F. Supp. 818, 836 (S.D.N.Y., 1996
forensics
issue
Defendant was serving a term of supervised release that mandated home visits at
any time from his probation officer. Probation officers and federal law enforcement
agents coordinated defendant’s home visit with a search of the residence of
defendant’s neighbor, who was suspected of drug activities. A probation officer
knocked on defendant’s door, received no answer, and walked along a gravel
driveway toward the backyard. From the driveway, the probation officer obs erved
potted marijuana plants in the yard and notified the federal agents who were
nearby. The appellate court determined that the district court did not err in denying
defendant’s motion to suppress. Defendant had a diminished expectation of privacy
with respect to any home visit by a probation officer because he was fully aware that
the conditions of his supervision included home visits. Therefore, the probation
officers conducting the home visit were not subject to the reasonable suspicion
standard. The “stalking horse” theory was not a valid defense and, even if it was
valid, the conduct of the probation officers was proper. Even under traditional
Fourth Amendment standards, the plain view doctrine applied.
WEEK 2 DISCUSSION
This week’s reading takes you from the general discussion we held last week into some more specific
details about the role of both criminal justice and non-criminal justice professionals in the IT and
computer forensics world, as well as why it is important that you understand the basic principles and
concepts of the criminal justice process. Then we get into the meat of what you would do and how you
would interface with law enforcement in the event you have to conduct a forensic system analysis. The
readings in module 2 again stress the importance of understanding the criminal justice process, as well
as discuss different types of devices or file systems that may contain information critical to your analysis.
Among the basic concepts to understand this week are that there are many types of evidence one could
find in digital data. Understanding what data you may find, even if it is not evidence of a crime, is
important to preparing a digital examination/analysis plan. Let’s look at a non-technical example…
When a law enforcement officer applies for a warrant to search a residence, the officer must specify for
what it is he or she is searching; if the case involves a stolen car, then the officer’s search will be limited
to only those locations a stolen car, or pieces of a stolen car (in case it was chopped), could be located. It
would be unwise to just list the stolen car on the warrant, as (in the interpretation of the court) might
only limit the officer to the whole car, intact. So, the officer has to determine in the beginning of their
search what could have happened to the car (attempting to account for all the possibilities) so his or her
search is complete (and most likely to yield results). The officer will also have to justify (in the affidavit)
why he or she believes that the car could be found in smaller pieces.
To that end, an officer with auto theft experience may also be able to state that, in his or her
experience, stolen cars are often broken down into smaller components, which can be identified with
certainty as belonging to the original stolen car, as well as where such components could be hidden. It
would most likely not be enough for the officer to simply assert that cars are broken down and sold for
parts, if he or she wants to justify seizing an ashtray; the ashtray would need some specific
characteristics to do that like a serial number, or other unique identifying artifact.
Search warrants and searches are, therefore, most often limited in scope to items for which the
searcher is looking (i.e., nearly always evidence of a crime or wrongdoing). You cannot look for an
elephant in a kitchen drawer! I know that sounds absurd, but it is an excellent metaphor… However, if
you were looking for narcotics, they could be hidden almost anywhere, and you could justify a much
broader search. In this example, digital evidence is much more akin to narcotics than you may think,
with evidential data often occurring in hidden, strange, or unlikely places. As such, warrants to search
for digital evidence often cast a “wide net,” but cannot be so overly broad as to not be supported by
probable cause or violate someone’s Fourth Amendment protections and implied rights to privacy under
the Constitution.
Do not despair, however, if you are not a law enforcement officer… The requirement to obtain a search
warrant does not apply to searches by private individuals or non-government organizations, as long as
the individual(s) have the authority to conduct the search (e.g., IT security personnel are searching a
computer owned by their company for company data, or an employee gives the company consent to
search for their personal data). Judicially, the Court evaluates whether your activity was an extension of
the government (law-enforcement); acting on their behalf or assisting them. However, even those
searches may be limited to certain parts of the computer system(s) or network(s). If a person is allowed
to use a personally-owned flash drive at work, and that drive is connected to the computer, you still may
not be able to search it without the employee’s consent. All of these examples depend heavily on
established company policies and what warnings were given to the employee.
The readings this week identify several types of devices on which digital evidence could be found.
For this week’s discussion, please select two of the devices described in your readings (or other
devices, if you prefer). For each device, answer the following questions below in detail. Please discuss
thoroughly and substantively in your post. Additionally, respond in a thorough, substantive,
intelligent way to at least one of your fellow classmates that adds to our discussion and learning of
this week’s topic!
For each, state what types of evidence you would look for on those devices in detail
Explain what limitations or hurdles you would have to clear before searching each of the devices
(BOTH as a company IT professional and a law enforcement officer).
Identify what, if any, policies would need to be in place for you to search as a private employee, as
well as what limits can be placed on the search by police.
Readings:
https://www.ncjrs.gov/pdffiles1/nij/219941.pdf
https://www.fbi.gov/file-repository/quick-reference-guide-for-laboratory-examinations_re-updated4_2016.pdf/view
https://www.isaca.org/Journal/archives/2014/Volume-1/Documents/Importance-of-ForensicReadiness_joa_Eng_0114.pdf
https://www.ncjrs.gov/nij/eyewitness/procedures_intrv.html
https://www.workplacefairness.org/workplace-searches
https://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1062&co
ntext=fac_pub
https://learn.umuc.edu/content/enforced/349738-027246-01-2192-OL47982/Privacy%20in%20the%20Workplace%20%20Balancing%20Employees%20Rights2.pdf?_&d2lSessionVal=rbvZW5S30Y71DLyA6yVwfr3aj&ou=34
9738
…
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