June 13, 2005

Kerr's 4th Amendment Puzzle

At Volokh Conspiracy Orin Kerr has a 4th Amendment issue that apparently hasn't been fully settled yet by courts. Simply put, when police search a suspect's hard drive, they make an exact copy of all the data and do their searching on the copy, not the original. The act of searching may alter the original, thus the need for a copy. It also makes sure they have a backup if anything goes wrong, no doubt. What if a suspect consents to a search but then (perhaps after speaking to an attorney) withdraws the consent after the copy has been made? Can the police search the copy?

I'd lean very heavily to privacy in this case. The guy withdrew consent and the fact that the hard drive was copied but not searched means nothing except that the copy has to be destroyed or turned over. They were preparing to search and undergoing preliminary steps to search but it hadn't even begun yet. If it had begun, they would have to stop mid-search.

Here's another question: what if the guy and his lawyer withdraw consent at 4:35 pm, but word doesn't get to the lab until 4:39 pm and at 4:37 pm th lab techie found something incriminating? As far as he knew, he had consent. Seems pretty clear to me that he didn't, in fact, have consent and that the withdrawal ought to apply immediately - leaving the evidence out. The difficulty, of course, is whether anyone could prove just when consent was revoked in relation to the discovery.


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