Challenge based on the file nameYour attorney should carefully check what the warrant or the justification for the search authorized. If the police claim that they encountered incriminating files in plain view while searching your computer for other files, your criminal attorney can argue that there must be probable cause to believe the folder and file contain contraband or evidence based solely on the name of the file or folder. Most data files bear extensions that identify them as one type of file or another, and files bearing different extensions will not be found in the same folder. For example, a search for e-mails, which bear an “eml” extension, should not wander through folders containing picture files, identified by a “jpg” or “tiff” extension. Similarly, document files often end with the extensions “pdf,” “rtf,” “wpd,” or “doc.” If a search for documents is authorized and the officers review files ending in “jpg,” they should know they are viewing picture files and exceeding the warrant’s scope.
Challenge based on the search methodYou can demand precision in executing a search of computer files. The police can and should use a key-word search and other technological search methods without unnecessary review of material for which there is no probable cause. They should not open each file on the computer and inspect its contents, as they might do when rummaging through a file cabinet to find documents responsive to a warrant.
Preserve the evidenceNowadays, the police either make a mirror-image of the computer’s hard drive and leave the computer itself, or they make the image rather quickly back at the station and return the computer. Your criminal defense attorney should take steps to preserve the electronic evidence to make sure that the police do not alter it. He or she should engage a computer technician to make your own mirror-image of the hard drive before the computer is used again to preserve an image of the files at the time of the search and to compare that image to the files the police present as evidence.
Move for the return of the propertyWhen the police seize files, especially computer files, that may have intermingled in them documents covered by the warrant and others beyond the warrant’s scope, your criminal attorney should do one of the following:
- Move promptly for the return of the property.
- Demand that the files be sealed and provided to an independent magistrate or special master for review.