The police have asked me to turn over my cellphone and laptop so that they can search it for illegal material and child pornography. I don’t have anything to hide, but I don’t want to turn anything over unless I really need to. What do the police need to get a search warrant for my electronics?
Under the 4th Amendment of the U.S. Constitution, as well as under the Florida Constitution, the police cannot search through information on your computer, laptop, cellphone, tablet, or other electronic device without either your consent or a search warrant. If you refuse to give consent, then a police officer or other law enforcement agent would need to provide a sworn affidavit to a magistrate or judge stating the grounds for probable cause. The affidavit would need to provide specific information showing that there is a high probability that law enforcement will find illegal material on your devices if they were allowed to search them.
Many people wonder how law enforcement could possibly know whether their devices contain illegal material such as child pornography. Most tips that law enforcement receives regarding child pornography come from internet service providers, such as Google or Safari. Internet service providers are private companies. Given that 4th amendment protections only apply to invasions of privacy committed by government actors and not private individuals or companies, the 4th amendment does not protect you from private companies turning over information they have to law enforcement. For example, if an internet service provider becomes aware of an image of child pornography, it can report that image, including providing the web server and address, to law enforcement. Law enforcement can then use this information to establish the probable cause they need to get a warrant for uploads or downloads of this illegal material.
Contrast this with the other way that law enforcement may receive tips, which is through the National Center for Missing or Exploited Children. The National Center for Missing or Exploited Children is a government agency and therefore can be a government actor capable of violating your 4th amendment rights. Because the National Center for Missing and Exploited Children is a government agency with the duty and authority to investigate suspected child pornography, they should be required to secure a warrant to view any image that may go to your computer. Failure to do so would be a violation of your 4th Amendment rights. If law enforcement violated your Fourth Amendment Right against unlawful search and seizure that is grounds for dismissing all charges against you under the “fruit of the poisonous tree” doctrine, meaning that because the original image was captured by the National Center for Missing and Exploited Children unlawfully, any investigation that followed was tainted by the original act. Until a search warrant is executed, you will not know the source of the information the police used to obtain the warrant. An experienced criminal defense attorney can uncover this information and use it to the best possible advantage in your case.
If you are under investigation or charged with a crime involving child pornography or other illicit material, it is important to contact a criminal defense attorney with experience with these charges and police investigations. An experienced attorney will be able to review the action the police took throughout the case and have any evidence obtained in violation of your rights suppressed, which could very well result in all charges being dismissed.