New York Criminal Lawyer Blog
Computers are playing an ever increasing role in crime and criminal activity. In some cases, case law is still in a state of flux in determining how certain searches are affected by this technology. A New York Criminal Lawyer said the question of novel issues in court are more common because of this. In one such case, the question was raised of whether a warrant authorizing a search of text files that are on a computer for documentary evidence pertaining to one particular crime, authorizes a search of image files on the same computer that contain evidence of a different crime. In cases like this, the question of law relates to the plain view doctrine.
The plain view doctrine states that anything that an officer can see in plain view while he or she is legally in a location, can be seized without a warrant. The suspect can then be charged with whatever crime the item suggests they are involved in. There are many cases that have established the case law referring to the plain view doctrine. Recently, the plain view doctrine has taken on an entirely different arena. The plain view doctrine can now be applied to computer files that are opened pursuant to a search of the computer. In other words, in the old days, the plain view doctrine applied to anything that an officer could see that was physically in plain view. For instance, a New York Criminal Lawyer said if the officer was inside a house relative to a domestic violence call, and observed a marijuana plant growing in the room, he could seize it and charge the person with possession of marijuana. The reason that he could seize it without a warrant is that he was inside the house legally handling a call for service and observed the plant in plain view. Now, most of us do not think about the files in a computer being in plain view, but if you think about them in the following fashion, it can be understood.
If an officer is searching a file cabinet located in a home for child pornography, under a search warrant that entitles him to look for evidence of the crime of child pornography, he is looking through the file cabinet legally. If he then sees a file that references drug crime, he can seize that file and make the appropriate charges, because he was legally in the file cabinet under the search warrant when he observed the additional file in plain view.
Now, we apply this concept to a computer. A New York Drug Possession Lawyer said if an officer is conducting a legal search of a computer for evidence of the crime of child pornography, and he sees a file that is labeled AB1, she is entitled to open that file to see if it contains evidence of the crime of child pornography. If when she opens the file, it is evidence of the crime of drug sales, she can seize the evidence in that computer file. She can arrest the subject and use the evidence against him in court. She can do this because she was looking through the computer under a legal search warrant. She could not have known what the file contained without opening it. She could not determine if it was evidence of the crime listed under the search warrant until she examined it. The fact that it contained evidence of a different crime does not negate the evidence because it was considered to be in plain view under this doctrine.
Now, let’s say that after the officer opened the file labeled AB1, and found the evidence of the drug sales. She then began to open all of the files to see if there was more evidence of drug sales. That additional evidence would be excluded under the Exclusionary Rule, because the officer would have been conducting an illegal search. As soon as the officer located the first file, which was legally obtainable under the plain view doctrine, she should have stopped the search. She should then have sought an additional warrant for the computer for evidence of the drug crime. Only then could she have proceeded to check the rest of the files for evidence of the drug crime.
In the case at hand, officers were working on a case involving an elaborate scheme to manufacture and sell devices that were capable of overriding cable television boxes so that the owners could obtain all of the premium channels for free. This type of conduct is providing the tools to commit the crime of theft of services. In New York, the crime for selling these boxes is criminal possession of forgery devices. The detectives prepared the case in an investigation that lasted one and one half years. They had witnesses, victims, they had even conducted a buy of the forged devices on at least two separate occasions.
They had information concerning three different names that were being used, but had only observed one suspect. That man drove a red Nissan 280Z. He had been recorded, and observed, on three different occasions, mailing boxes that were the right size and shape to be the forged boxes. The recipient had then received the forged boxes by mail carrier the following day. On the last buy, they had arranged for a planned purchase of ten of the forged boxes. When the suspect left his home with a parcel that was the right size, the officers stopped him. He was in his red Nissan backing out of the driveway that was listed as the return address on the boxes that had already been delivered.
When he was stopped, he had the closed boxes on the passenger front seat beside him. The boxes were in plain view. An officer has the legal authority to search any items that are within the immediate reach of any person who is arrested. That includes any closed boxes. The boxes contained the forged cable devices. At that point, the subject was searched incident to arrest. The keys to his house, which were in his pocket, were seized.
The officers obtained a search warrant for the house, and the post office box, that the subject had been using to take orders, manufacture, and sell the forged cable units. During the course of the search of the house pursuant to the search warrant, for evidence of the crime of manufacture and sale of forgery devices, the officers seized three computers that were believed to have been used to operate the forgery business. The officers then obtained a separate search warrant for text files documenting the operation of the forgery of illegal cable boxes. After the hard drive had been copied onto another computer, the forensic examiner began the search through the files for evidence under the search warrant. He observed a file that was labeled, “DSS.” In this folder was additional evidence of the crimes relating to the forged cable units. Since it was ambiguously labeled, the search of that file and the evidence that it contained fell legally under the search warrant that had been obtained. Shortly after locating that file, the forensic examiner located a file that was labeled, “fake I.D.” this folder was not ambiguously labeled. Given this subjects affinity for forgery, the examiner should have reasonably considered that the contents of this folder would contain evidence of an additional crime. At that point, the officer should have ceased his search and obtained a separate search warrant for evidence of the crime of forgery of I.D. Documents. At the very least, he should have obtained a warrant for evidence of any other illegal activity that may be present on the computer itself. However, the officer did not take either of these actions. He opened the file, it did in fact, contain evidence that this subject was also running a web site dedicated to producing, “novelty I.D.s.” Because these novelty identification cards were driver’s licenses, work identification cards, and social security cards, he was not convincing anyone that these would be used as novelties. He was charged with creating forged identification documents.
The defendant in this case, made a motion to the court to suppress the evidence that was located from the point where the forensic examiner opened the file that stated that it contained fake identification. The court ruled that the officer should reasonably have been able to determine that the file contained evidence relating to a different crime that was not covered under the warrant, that he should have stopped the search and requested an additional warrant based on this new probable cause to believe that the subject had committed an additional crime.
Additionally, the warrant specifically related to text files. The files that were in the fake identification folder were JPEG files indicating that they contained images and not text files. This in and of itself put this folder outside the scope of the search warrant. Because this file was outside the scope of the original search warrant and no additional warrant was obtained before opening it, all of the evidence obtained in that file and all other files after that one concerning the forged identification documents must be suppressed. They cannot be used in a court of law because they fall under the Exclusionary Rule. Since all of the evidence that was found after that first folder was fruit of the poisonous tree of an illegal search, it is all prevented from being shown to a jury in a court of law.
Another mistake that the detectives made in this case, related to the Miranda Warning Rule. At the time of his arrest, this defendant was in his vehicle pulling out of his driveway. He was stopped and arrested. The vehicle search was valid as previously discussed, however, the officer asked him a question after he removed the subject’s keys from his pocket. He asked the defendant if there was anyone else in the house, or anyone else involved in his scheme. The officer asked this based on the three different names that had been used. Later it was discovered that these names were all aliases of the same defendant. At the time that the question was asked, the officers did not know how many people were actually involved. The defendant answered by stating that there was no one else in the house and that there was no one else involved. The defendant moved to have his statements suppressed under the Miranda Rule.
Under the Miranda Rule, if a person is in custody and questioned, he is entitled to his Miranda Warnings to have an attorney present. This defendant was not advised of his Miranda Warning, however, since the search that found the keys was subsequent to arrest, he was clearly in custody. He was then asked a question. That violates the Miranda Rule. He should have been given his Miranda Warning. This failure makes all of the statements that the subject made after arrest and before his Miranda Warning, inadmissible in a court of law.
At Stephen Bilkis & Associates the ability to have a Queens Criminal Lawyer in convenient offices throughout New York and Metropolitan area. Whether you have been charged with drug possession, a theft charge or sex crimes, we can provide you with advice to guide you through difficult situations.