In the words of a classic song by The Clash: know your rights. In these days where Democratic lawmakers are willing to allow Bush unfettered access to espionage technology under the umbrella of protecting you from Big Bad Bin-Laden-who, by the way, remains at large six years after 9/11-it is vital to know your rights on the unlikely occasion that you actually do find a search warrant in the hand of some FBI agent sitting at your computer desk.
Computer files have replaced those old tin file cabinets as the Holy Grail for FBI agents conducting a search, either with or without benefit of a warrant. If you should catch an agent going through your stuff without a warrant, the best thing is to whip out your cell phone camera and document their breaking of the law. Don’t bother calling the cops; they won’t help you against another law enforcement agency. But what about when law enforcement agents do have a search warrant? What are you rights then when they insist upon looking through your home office? This is where the legal term limiting phase comes into play. Let’s say that a search warrant has been issued to search for specific information tying you to terrorist activities. For the sake of argument, let’s say there is information on your computer that does implicate you, but during the course of the search the FBI also finds personal information about your life that has nothing to do with terrorism, but might be embarrassing. That information that doesn’t implicate you falls under the limiting phase and it must be separated from the evidence tying you to a crime. Unless the items that are merely humiliating to you are found in a place that warrant specifically allows the agents to seize, it is against the law for them to do so.
On the other hand, let’s say the agents have procured a search warrant that allows them to search your desktop computer in your home office, but as they bust down your door they discover a laptop computer sitting on your kitchen table. If there is no mention of a second computer or no mention of evidence found inside the kitchen, the agents are violating your rights by even lifting open the laptop lid. It is off-limits and if you are lucky enough to catch them on video moving that laptop into your home office, you have just had your case thrown out even if you are guilty.
Well, probably. There is a little legal loophole that police and FBI agents have been tossing illegally found evidence through for years. It is called the plain view doctrine and it essentially says that if law enforcement agents were to happen upon that laptop computer in the kitchen, opened to reveal what was on the screen and, let’s say, what was on the screen might possibly lead the officer to believe that the computer contained evidence of an unrelated criminal act, they can legally seize the laptop. There is a rein on this abuse, however: They can only seize that laptop if there had been prior investigative documentation that established a justification for that intrusive act.
One last thing. If you are at home when the agents arrive they must first knock on your door or ring the doorbell and announce their presence and then give you enough reasonable time to answer and open the door. The only time that the fuzz can bust through your door unannounced is if they get a judge’s permission on the warrant because they have convinced him they a reasonable reason to fear that announcing their arrival will result in your destroying evidence. If you are innocent and they knock down your door unannounced, you can create a whole heap of trouble in your lawsuit.
