Question: If you get a warrant to search computers for child pornography but only find instant message chat logs detailing sexual activity with a minor, do those logs fall under the scope of your warrant?
Quick Answer: Maybe. Because the instant message chat logs detailing sexual activity with a minor were found on the computer, and a computer is normally where electronic pornography would be stored, seizing the chat records could have been within the scope of the warrant.
State of Ohio v. Zwick, Second Appellate District, Miami County, Jan. 24, 2014
Facts: An undercover detective, posing as a single father, responded to an ad on Craigslist posted by Jason Zwick. It read, “Taboo? Incest? Two Brothers or Dad and Son?” The detective received a response from Zwick, who was using the screen name “hotjock01.” During the online exchange, Zwick said he had contacted a father who allowed Zwick to meet and engage in anal sex with his son. Zwick asked the detective if he would allow him to engage in anal and oral sex with his sons. Over the weeks that the undercover detective and Zwick chatted, Beavercreek Police Officer Christopher Unroe found Zwick’s address and linked it to hotjock01. Unroe obtained a warrant to search Zwick’s computer for evidence of child pornography based on his experience that individuals who engage in Zwick’s behavior are also likely to view and keep child pornography. No pornography was found during the search, but police did uncover chat logs between Zwick and others detailing sexual activity with minors. Zwick argued that the chat logs should not be allowed in because they were outside the scope of a warrant to search for child pornography. The court disagreed on technical grounds, but this case highlight the complexities for computer searches.
Importance: Officers cannot exceed the scope of the search warrant. For instance, a warrant to seize a stolen car cannot be used to search a suspect’s medicine cabinet. But a warrant to search a computer is like a warrant to search a house: Once you’re inside, you can seize evidence of any crime that falls within the scope of the warrant or in plain view.
Keep in Mind: This case was decided on a specific rule used in appellate courts, but it does outline some things to consider when writing and executing a child pornography search warrant. Are you asking for text information in the warrant, or are you just asking for images? When you do the forensic search, are you finding evidence in “plain view” that is not specifically referenced in the warrant? If you think so, remember that you’ll have to be able to explain the whole process to a judge.
Conducting undercover operations online poses a number of legal and technical issues. Consider attending an
Ohio Peace Officer Training Academy course, in which you can learn how to create a profile, where to conduct searches, and how to make certain any evidence you seize can be used against the suspect. The course, Undercover Online Investigations, is free and will be held in April and September.
More on Proper Protocol
Who’s Who, Round Two: Your department arrests Bob on an outstanding warrant. During booking, it’s discovered that the warrant was actually meant for the Bob’s childhood friend Joe, who illegally used Bob’s name. Bob is released later that day and files a police report detailing the mistake and accusing Joe of identity theft. Almost a month later, on routine patrol, you run Bob’s vehicle registration through LEADS, where it is still erroneously linked to the first-degree felony arrest warrant for Joe. You arrest and search Bob, finding two small bags of meth and ecstasy in his pants pocket. Bob explains the warrant confusion, but you don’t attempt to verify his claim or identity. Are the drugs admissible? No, according to the court in
Scott. Evidence obtained under an invalid warrant may be admissible if the officer had an honest belief that the warrant was good. However, when the warrant is known to be faulty, law enforcement may not continue to use the erroneous warrant to obtain evidence. If a subject claims the warrant is meant for someone else, take a few minutes to double check. If you arrest someone under a warrant and find it contains a mistake, tell someone who can fix the error so it doesn’t happen twice.
State of Ohio v. Scott, Eighth Appellate District, Cuyahoga County, Feb. 6, 2014
All I have to do is dot the I’s. You pull over a driver for failure to use his turn signal. After addressing the driver, you perform a breathalyzer test and the driver blows over the limit. You’ve been certified to use the breathalyzer, but you still haven’t completed your in-service course for this particular model. Are the test results admissible? The court in
Drake said yes. Even though state regulations require completion of in-service training, the fact that the officer held a valid permit to administer the test was sufficient to ensure an accurate administration.
State of Ohio v. Drake, Fifth Appellate District, Knox County, Feb. 12, 2014