Actually, I'm all set. My husband got me a bitchin' livescribe pen that records hundreds of hours of audio and can match the audio to my notes. Not that I really have occasion to use it. I just think it's really cool. Next thing on my gadget list is a pen-sized scanner. That baby will store thousands of pages of text. Go to the library, scan in the content, download to the laptop and you're off to the races! Technology is a wonderful thing. Especially when you compare what we have today with how Alexander Hamilton and Abe Lincoln had to practice- candlelight and a sharp quill was the best they could hope for.
Even though I have all that I could ever want or need, I'll start by saying what I ask for isn't for me. It's for Connecticut law enforcement and the cause of justice. So, since I'm asking for a big cause, I'm aiming high.
1. The search warrant statute (CGS 54-33c) says that search warrants have to be executed within 10 days. Well, there are many interpretations out there when it comes to digital evidence and other evidence that requires forensic analysis. As I’m sure you know, sometimes analyses take upward of a year. Nobody has launched an appeal in earnest, and nobody’s really squawked about getting their stuff back yet. Besides, often they don’t want to, because there’s child porn on it. . . Nonetheless, it’s something that’s just clearly illegal. The law says 10 days and the police take a year to do the search. Doesn’t take a genius to figure it out. The lab people have always said that they interpreted the law to mean that the search was executed when the evidence was submitted to the lab. That, of course, is not only intellectually dishonest but factually wrong. Especially in the case of a computer search, it doesn’t even begin until the case is cracked and the source is duplicated. I’m not the only authority on the subject. Prof. Orin Kerr, a big guy in the field, shares the view that there are separate and continuing searches and that the traditional 10-day search warrant execution requirement needs to be changed.
One suggestion would be to require that police re-apply for authority to continue the search every 15 days, similar to what’s required for wiretaps. That way, they would have some accountability to the judicial branch for their continued intrusion into the subject’s private property. I think it’s a judicious course to take, especially given that we keep so much of our personal information on our computers. The feds check in periodically on digital exams for this reason. There should be an explicit requirement in CT that for any search that has more than one stage and/or exceeds the 10 day limit that police must reapply for search authority and justify the need for continued custody and search.
2. The search warrant statute requires that searches be conducted by CT police officers. Well, when police need information from third parties who hold information, such as Internet Service Providers, communications providers, the electric company, credit card companies, etc, they give the search warrant to the company and the company employees conduct the search. Another fiction/lie- the interpretation by law enforcement is that the search is executed when the warrant is handed to the company representative. No, it’s not. In other states, they’ve dealt with the issue by allowing for a ‘special circumstances’ exception for specialized information or circumstances in which the police cannot effectively conduct the search and the statute allows them to rely on the third party data holder to conduct the search.
3. Many of the third party data holder searches are extra-territorial. The companies and data are located outside of the state. Police have tried to get around jurisdictional limits by serving the search warrant on either the agent for service of process or the secretary of the state. This came from civil/commercial law that allows for this to facilitate legal process for foreign corporations. When it comes to criminal procedure, there’s a dearth of authority on the matter, and in CT, there is a situation in which the judges down in GA 2 refuse to sign any warrants for any evidence located out of state because they believe it is beyond the scope of their authority and jurisdiction. That is absolutely incorrect under any interpretation of the United States Constitution’s Full Faith and Credit Clause, but, hey- that’s what’s going on, and without a statute, this refusal is going to spread like a virus to other GAs and JDs.
4. Finally, a recent 9th Circuit case has held that the plain view doctrine does not apply to computer searches (United States v. Comprehensive Drug Testing). That may not seem like a very big deal, but what they’re talking about in the opinion is. It’s a case that came out of the baseball player steroid use investigation, and some of what happened was that the FBI (being the FBI) scooped up a bunch of electronic data under the auspices of a broadly worded search warrant and took it back to the lab for examination. They went through the data and discovered, in ‘plain view,’ a bunch of inculpatory information about baseball players, other than the targets of the investigation, who tested positive for steroid use. The 9th Circuit Court put the brakes on, saying that the feds overstepped their boundaries by looking at data that went beyond the scope of the warrant. Importantly- the court said that the feds should not have used investigators to do the ‘searching.’ Instead, they should have used unbiased civilian forensic examiners who should have reviewed the data and turned over to the investigators ONLY the data relevant to the investigation and specifically identified in the search warrant.
That holding, if applied to CT cases involving digital evidence emanating from the Computer Crimes folks in Meriden would invalidate more than half of their cases and cast doubt on the others. The National Academy of Sciences put out a report recently that recommended that all crime labs be removed from the supervision of the police to avoid the appearance of and actual bias. The 9th Circuit decision in Comprehensive Drug Testing underscores that sentiment and makes it a bit more critical to address. The feds chose not to appeal the decision in Comprehensive Drug Testing to the Supreme Court- I’m thinking because they know they’d lose and they don’t have the present ability to make the wholesale nationwide changes that would be required to make their system right.
Legislation should be passed that will remove the lab from state police involvement and supervision. It could be maintained under the DPS for administrative purposes or better placed under the Judicial Branch. Judicial may not be equipped to deal with the additional responsibility, but there’s got to be an appropriate administrative home for it.
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