In May, a federal judge excluded evidence from a child pornography case because the search warrant was based on impermissible evidence. Setting aside the abhorrent nature of the alleged crime, I think this was the right decision. While the accused did surrender his laptop to Best Buy’s Geek Squad technicians, that doesn’t give the techs carte blanche to search for incriminating material.
It’s not as if the images were in a folder called “Here’s my kiddie porn!” on the accused’s desktop. They were apparently deleted files recovered from the unallocated part of the disk drive. Now it’s entirely possible that they were the accused’s files that he had deleted. It’s also possible that they were from a browser cache after clicking on a risky link. Or that they were from the previous owner of the hard drive (if there was one). As the judge noted, there’s no clear possession.
Furthermore, because the Geek Squad technicians were acting as agents of the government, the standards are a little higher. The fact that the FBI, when applying for the search warrant that lead to the discovery of more illegal material at the accused’s house, omitted key facts did not help.
On This Week in Law (episode 387), one of the panelists (I believe it was Matt Curtis) said reasonable people can disagree, but he doesn’t think there’s a reasonable expectation of privacy when you give your property to a third party. I agree, but it all comes down to the definition of “reasonable”. Unless specifically requested, I don’t see that a reasonable person would assume technicians would search inaccessible parts of the hard drive. After all, he sent in the laptop for repair because it wasn’t working, not to recover data.
The digital era changes the framework for how we consider privacy, both culturally and legally. Nevertheless, the fourth amendment provides a key safeguard to the liberty we hold dear. It should be difficult to prosecute someone for a crime, even when that crime is despicable. Particularly when the crime is despicable.