[The hard drive was searched, and...] After incriminating emails were uncovered
through that process, the agent sought and obtained a warrant based upon the
content of the emails to conduct the search of the hard drive that had already
been completed and to seize the emails that had already been reviewed. Those
mails now form a part of the basis of this prosecution, and Kim moves to
suppress that evidence, arguing that his rights under the Fourth Amendment of
the Constitution have been violated.
Isn't that post-facto application for a warrant precisely an admission that the initial search was illegal?
[I am not a lawyer] My sister-in-law (the defense attorney) would say that you can look if you have probable cause, and then get a warrant for more invasive looking and/or looking elsewhere. But reading the judge's remarks in the article it does not sound like the judge believed they had enough cause to seize the laptop. I hope this goes to the Supreme Court because I would hope they would rule in favor of the 4th amendment on border seizures for laptops. It offends me as a tax payer and a voter that this is allowed and every year and twice on every election year I inform folks who would seek to be my representative that landing in favor of the 4th amendment will help to secure my vote.
That said, I've always been curious (but insufficiently brave) to create a 'bait' laptop which would be a laptop designed to exfiltrate video and audio of everything that goes on around it into a cloud server. Then tweet in passing I finally got some juicy bits and head off on an international jaunt to provide a seizure opportunity.
Whether you believe it or not, there is a reasonable explanation for this in the opinion which doesn't require SIGINT magic, just fairly boring detective work.
It's possible, but I wouldn't say it's probable given that the agents seemed to know to search certain emails in order to gather material for a warrant after the fact.
If they had detective work in hand at the time of seizure which demonstrated the content of these emails, they'd have been able to get a warrant for the search on that basis.
> It's possible, but I wouldn't say it's probable given that the agents seemed to know to search certain emails in order to gather material for a warrant after the fact.
They didn't search "certain emails", they searched all of the emails on the laptop. It's not improbable that there would be interesting evidence in someone's email after a trip when you expect they will have been up to no good, and it's not improbable that a broad keyword search over those .pst's would find something.
> If they had detective work in hand at the time of seizure which demonstrated the content of these emails, they'd have been able to get a warrant for the search on that basis.
Yes, but they evidently didn't think they needed one: the dominant culture the agents were working in seems to say that this constituted a reasonable search, and that applying for a warrant after the fact was proper - that is the real problem here, and the one the judge is picking up on. The opinion describes this: they had enough warning of the guy's trip that they could decide whether to seize the laptop on the way into the country or on the way out, but decided on the latter to give the guy a chance to generate incriminating evidence, because they didn't think they'd catch him in the act otherwise.
Seriously, this looks more like an everyday process that's evolved in a bad direction than parallel construction. They weren't expecting to have to defend this search procedure.
Seems like he didn't feel the need for a warrant to "search", but did to "seize". Given the state of things, you could almost forgive him for thinking that he could do whatever the hell he wanted without worry of recrimination.
Which is funny since that's more or less how I've always heard, as a person outside of law enforcement, a warrant works. It provides permission to search for, often specific, evidence to seize.
The other important points influencing the decision were the amount of time spent examining the hard drive and extensive detail of the search.
"...that wherever the Supreme Court or the Court of Appeals eventually draws the precise boundary of a routine border search, or however either Court ultimately defines a forensic – as opposed to a conventional – computer search, this search was qualitatively and quantitatively different from a routine border examination, and therefore, it was unreasonable given the paucity of grounds to suspect that criminal activity was in progress."
If a warrant was obtained with evidence that itself was illegally obtained then yes the warrant is worthless. Also that "evidence" found is not admissible as it was illegally obtained.
Thats right. They knew, but didn't care so they skirted the law in order to find probable cause. They messed up. Thank the founders for our constitution ladies and gents. Its a strong document thats laws stood the test of time.
