Evidence doesn’t always mean a footprint or a strand of hair. When an employee is charged with a sex crime involving computers, such as child pornography charges or online solicitation of a minor, Pennsylvania law enforcement will want to search for digital evidence like chat logs, email records, saved images, and file uploads/downloads. That means going through your work computer, as well as any external hard drives or other data storage devices you might own. But do police need a warrant to search your office the way they need a warrant to search your home? Our sex crime attorneys explain some of the issues which can arise in these complex cases.
As we discussed in our article about what constitutes police brutality, there are some situations where police are allowed to conduct warrantless searches. For example, search warrants are not needed in cases where:
(In fact, in the recent case of Commonwealth v. Gary, the Supreme Court of Pennsylvania actually increased police powers by ruling that officers could search a vehicle without obtaining a warrant or permission from the driver as long as probable cause existed.)
Unfortunately, these exceptions also carry over to police searches of computers, laptops, tablets, smartphones, flash drives, and other electronic devices used to store or share data.
Furthermore, law enforcement are allowed to search your possessions without a warrant when you are at United States borders. That extends to include international airports, even when the airport itself is not physically located on or near a border. It does not matter if the international trip is for work or leisure.
While the Fourth Amendment normally protects against “unreasonable searches and seizures,” in United States v. Flores-Montano the U.S. Supreme Court found that “the Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” leading to the ruling that “searches made at the border… are reasonable simply by virtue of the fact that they occur at the border.” When defendant Manuel Flores-Montano tried to argue that he had a reasonable expectation of privacy, the Court found that his rights to privacy were diminished due to the fact that the search occurred at the border.
Even though national security is not a factor in most office settings, this concept also carries over to the workplace.
When a computer (or other device) is issued to an employee by an employer, there is generally a diminished expectation of privacy. This means that, in certain situations, police officers can legally search a work computer without first obtaining a warrant.
This can potentially extend to email messages and instant-messaging transcripts. As Diane Vaksdal Smith and Jacob Burg note in their article “What Are the Limits of Employee Privacy?” published in ABA magazine GP Solo, Vol. 29, No. 6:
An e-mail sent on the work e-mail system will, in all likelihood, ‘belong’ to the employer, and the employee should not have an expectation of privacy even if the subject matter of the e-mail is private… Instant-messaging transcripts of conversations involving one or more employer-owned computers most likely belong to the employer for the same reason as the e-mails do and can be accessed under the same conditions.
At the same time, in some cases the courts have ruled that employees do, in fact, enjoy a reasonable expectation of privacy. For example, in 2007 in United States v. Ziegler, the Ninth Circuit U.S. Court of Appeals found that the defendant had an expectation of privacy because the computer, while belonging to the company, was located in Jeffrey Ziegler’s private office. A skilled criminal defense attorney will carefully scrutinize every aspect of the search to make sure your Constitutional rights were not violated by law enforcement.
Finally, it is important to point out that different standards apply to searches conducted by law enforcement and searches conducted by private citizens, like IT staff and maintenance workers. In 2001 in United States v. Grimes, where a technician found child pornography on an employee’s work computer, the Fifth Circuit U.S. Court of Appeals found that the search, “being private in nature, is not subject to Fourth Amendment analysis.” In other words, the Fourth Amendment was not violated.
Child pornography charges and other computer-based sex crimes against minors and children are some of the most serious allegations any defendant can ever have to face. A conviction will result in mandatory registration with the Sex Offender Registry, and Pennsylvania’s fines and prison sentences for sex offenses are incredibly harsh. Convicted sex offenders struggle against a lifelong stigma – even long after they are released from prison.
When the charges are this serious, it is of the utmost importance that you speak to a knowledgeable and experienced attorney immediately. To set up a free and private legal consultation, call the law offices of Krasner & Long right away at (215) 882-9752. We handle cases in Philadelphia and throughout Pennsylvania.