Daniel Cesare

HHS 373

Professor Elewa

12 May 2019

Final Exam

1) In analyzing the search warrant, the issue of fourth amendment particularity is evident.

The amendment stipulates that warrants must, “particularly describe the place to be

searched, and the persons or things to be seized.” This section attempts to keep all parties

aware of the scope of the search/seizure requested within the warrant. A warrant

considered to be sufficiently “particular” has three criteria. It must specify the offense

backed by probable cause, describe the location to be searched, and relate the items to be

seized with the crime. Applying these criteria is incredibly important to computer/digital

seizures because of the immense data electronic devices and accounts hold. Law

enforcement should not be able to easily browse through every piece of personal

information held on a device to find the one piece of evidence they need. The warrant

must show all descriptive facts that can be reasonably expected of law enforcement. The

data found on Shemp’s seized computers and cellphones has grounds to be suppressed

based on the “particularity” requirement. Two charges filed based on evidence from the

seizure have absolutely nothing to do with offense stated within the warrant. Along with

this, the warrant gives law enforcement unlimited access to not just Shemp’s personal

devices but all others within the residence. The warrant also does not specify the type of

data to be searched. One case which contextualizes this argument on particularity is ​U.S.
 v Ulbricht​.​ ​The 2nd District Court of Appeals denied a motion to suppress digital

evidence based on a “particularity” argument. One of the warrants in the case concerned

the seizure of a laptop. This warrant was considered sufficiently particular because it

provided a detailed outline of the charges, the physical device and types of data to be

searched, and the relationship between the two. The court found that the argument in the

case confused a warrant’s “breadth” with its “particularity.” A warrant can be written

with broad language, as long as it does not break one of the requirements for

particularity. This idea prevents the use of “general warrants,” while allowing law

enforcement to anticipate well protected information. Computer searches without

particularity can end up as a general warrant, like the current circumstances, because of

the information found that is irrelevant to the charges presented on the warrant. This is

why there are grounds to suppress the evidence discovered in the search of Shemp’s

digital devices.

2) Both motions to compel Shirley to unlock her smartphone abridge her fifth amendment

privilege against self-incrimination. Self-incrimination depends upon “testimonial

communication” where the witness discloses information or asserts a fact by “using the

contents of his/her own mind.” The unlocking of cell phones using fingerprints has a

contested precedent set by courts. However, I believe enough successful arguments have

been made to prevail in our circumstances. While it is generally agreed upon that the

gathering of a fingerprint itself does not qualify as self-incrimination, it is the “act of

producing” evidence not considered a “forgone conclusion” is self-incriminating. ​U.S. v

Doe ​is the first case which establishes the concept of producing information within the
 digital age. John Doe was subpoenaed to produce the unencrypted data of multiple hard

drives owned by him. By decrypting these drives, the eleventh circuit found he would be

using his mind to convey information to authorities that could include incriminating

evidence. None of the data on the drives could be considered a “forgone conclusion”

because the government had no evidence that there was actually encrypted data on the

drives. This idea is extended to fingerprints and passcodes in​ In re Application for a

Search Warrant​ and ​In the Matter of the Search of a Residence in Oakland, California​.

These cases show the personal importance and breadth of data on a cellphone, while also

stressing the relationship between fingerprints and ownership of the phone. One case

which attempts to refute many of these arguments is ​State v Diamond​. The main

argument used against fingerprint unlocking being self-incriminating is that fingerprints

themselves are not protected. This case looks at the technical and physical background of

a fingerprint, rather than the broad scope of implications that come with fingerprint

unlocking. As stated in ​...Search of Residence… ​:“ It follows, however, that if a person

cannot be compelled to provide a passcode because it is a testimonial communication, a

person cannot be compelled to provide one's finger, thumb, iris, faee, or other biometrie

feature to unlock that same device.” Shirley has a likely success of prevailing against the

compelled disclosure because using her biometric security is a broad form of encryption,

preventing unwanted users from the accessing the data stored on the device.

3) Based on the circumstances stated, the government could successfully use the messages

sent by Shirley, but the messages from Olive could be suppressed under the fourth

amendment. This analysis depends upon the ​U.S. v Jarrett​ case, which establishes an
 assessment of a government agent within the digital age. Two points are given to

determine a government agent, being that the government encouraged or participated in

the private search and the private individual intended to assist law enforcement. Based on

his track record and requests, we can assume The Dark Overlord had no intention of

assisting law enforcement but used this as an opportunity for personal gain. This makes

the only point of contention the former. In analyzing the facts, the government was given

authorized access to search Shirley’s phone prior to contact with The Dark Overlord, but

not Olive’s. Shirley's phone was able to be searched based on a warrant already and the

incriminating messages sent as proof were not influenced by the government. On the

other hand, The Dark Overlord provided Olive’s messages after having contact and

payment from the government. Using these messages would make him a government

agent, as the government would be a willing participant in the private search. The​ Jarrett

case specifies that the government's active interaction with the private hacker took place

after the search of the residence. The government used the information to acquire a

warrant to search the defendant's property before any “encouraging” interaction

happened. In theory, if Olive’s messages were sent before the payment, the government

could apply for a search of Olive’s device based on the evidence provided by The Dark

Overlord. This is why the government could only successfully use Shirley’s messages

and Olive’s could be suppressed under the fourth amendment.

4) The government could still use the messages sent by Shirley, as The Dark Overlord is

still not acting as a government agent. Based on much of the analysis brought forward

before, The Dark Overlord still hacked the dropbox account of his will and the
 government did not participate in the private search. The hacking and subsequent search

and seizure of the dropbox account happened before the government established any

meaningful relationship with The Dark Overlord, i.e. payment. In a similar vein of

Jarrett,​ the hacker was not asked by the government for assistance. Even though the

government did not have authorization to search the dropbox account, they can still use

information acquired from private means. This is why the government could still use the

messages sent by Shirley.

I pledge my honor that I have abided by the Stevens Honor System- dcesare