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ABSTRACT:
The very nature of digital evidence, defined as evidence stored on any form of magnetic media, makes the proper collection of such evidence an important consideration during seizure. Historically, courts have attempted to apply jurisprudence developed for the physical world to cases involving the cyber world. As a result, confusing guidelines have been created for those who handle computer-related investigations. This article examined the issue of warrantless searches and seizures of digital evidence justified under the plain view doctrine. Through examination of the Fifth Circuit decision, United States v. Carey (1999), and the Virginia district court decision, United States v. Gray (1999), it was determined that proper seizure of digital evidence under the plain view doctrine requires: 1) access to the evidence be obtained legally, 2) the apparent illegal nature of the evidence be immediately known, and 3) the officer cannot abandon their original search.
INTRODUCTION
In the past, it was stated that computer crimes were infrequently reported for two reasons. First, there was a perceived fear on the part of businesses that reporting a computer crime could result in negative publicity. second, there was a belief that law enforcement agencies were incapable of handling computer-related crime (Clark & Diliberto, 1996). Today, more computer-related crimes are being reported and it appears that more criminal justice agencies are responding to the reports (Hitchcock, 2002). However, as reporting and investigations have changed, a new problem has developed - reconciling the crime and the law. The legality of many issues has yet to be decidedly addressed, with the United States Supreme Court ruling on relatively few issues involving technology and criminal investigations (Biegel, 2003). As a result of this lack of guidance, the lower courts have issued several differing and oftentimes confusing opinions. These opinions have resulted in debates concerning the proper course of action in investigations involving computers and high technology devices.
One of the more interesting legal debates involves the application of the plain view doctrine to the search and seizure of digital evidence. The plain view doctrine, like other warrantless search doctrines, was developed for use in the physical world. Attempts to apply this physical world doctrine to the digital realm have resulted in several problems. One such problem is the development of...