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The Information Systems Security Association (ISSA)® is a not-for-profit, international organization of information security professionals and practitioners. Through its membership, ISSA -Kansas City helps security professionals in the Kansas City area learn of information security issues and trends, which promote education, collaboration, and leadership, and further the information security profession.


This article discusses the legal issues relevant to the first and second search and seizure of digital evidence. The article addresses the following points of research:

Analyze and explain whether the first search was legal, and whether or not the evidence seized is admissible in the federal court based on case law.

Analyze and explain whether the second search was legal, and whether or not, the evidence obtained from that search will be admitted in the federal court. 

Following the examination of the evidence obtained in the first and second seizures, it is discovered that the Federal Bureau of Investigation (FBI) did not have a search warrant when they searched the subject’s home and seized the initial digital evidence. They acted on a tip from an informant who told them that the subject had the material and the knowledge to build and deploy the dirty bomb and the person intended to do so within hours. The police investigated the information from the informant and determined that the approximate amount of material necessary to build a dirty bomb had been stolen from a nearby weapons facility. Police received information from the informant in the past that was accurate and resulted in the arrests and convictions of three subjects. 

The exclusionary rules is based on the principle of the federal Constitutional Law that evidence illegally seized by law enforcement officers is in violation of a suspect's right to be free from unreasonable searches and seizures cannot be used against the suspect in a criminal prosecution. The exclusionary rule is designed to exclude evidence obtained in violation of a criminal defendant's Fourth Amendment rights. The Fourth Amendment protects a person against unreasonable searches and seizures by law enforcement personnel or forensic investigators. If the search of a criminal suspect is unreasonable, the evidence obtained in the search will be excluded from trial (Search and Seizure Organization). 

First Seizure The first seizure may or may not have been legal and the admissibility of the evidenced will be questioned. The U.S. Supreme Court has continued to look at the application of the exclusionary rule to various types of searches and seizures. In Florida v. White, 526 U.S. 559, 119 S. Ct. 1555, 143 L. Ed. 2d 748 (1999), the Court gave police more discretion to search and seize without violating the Fourth Amendment's warrant requirement and enacted the exclusionary rule (Find Law for Legal Professionals). It pointed to its tradition of allowing police “greater latitude in exercising their duties in a public place”. Although a warrant is generally required for a felony arrest in a suspect's home, the Fourth Amendment permits warrantless arrests in public places where police have “Probable Cause” to believe that a felony has occurred (Find Law for Legal Professionals). 

In another case concerning the Fourth Amendment, the U.S. Supreme Court ruled that an anonymous tip by itself does not give police officers the authority to Stop and Frisk a person for a weapon, Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) (Find Law for Legal Professionals). However, if the search is based only on an anonymous tip, the seized weapon or data may not be offered into evidence, due to the exclusionary rule (Find Law for Legal Professionals). 

The U.S. Supreme Court also invoked the exclusionary rule in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). “It set out a new rule for police when they want to use new types of Electronic Surveillance, including thermal imaging, to examine the inner workings of a home” (Cornell University of Law School). The Court held that “police must apply for a warrant from a court before using a device that can obtain details of a private home that would have been unknowable without physical intrusion. If police fail to secure a warrant, “the search will be regarded as presumptively unreasonable and the evidence that the search produced will be inadmissible at trial under the exclusionary rule” (Cornell University of Law School). Individuals had a minimum expectation of privacy that the interiors of their homes are not subject to warrantless police searches” (Cornell University of Law School). This means that any information obtained by “imaging is a product of a search, and that the search was unreasonable and could only be justified if it was made pursuant to a warrant” (Cornell University of Law School). 

According to the American Bar Association (ABA), the police do not have a right to search your home or its contents without a warrant. However, according to the ABA, the police are permitted to search your home without a warrant if there are sufficiently exigent circumstances. These include “an emergency situation where the police have reason to believe someone's life is in danger” (American Bar Association). 

In June 2014 the Supreme Court ruled unanimous that ruled that law enforcement agencies cannot randomly search your cellphone without a warrant. There are exceptions however, when there is a threat of terrorism, or a child is missing or in danger. 

“Modern cellphones are not just another technological device. With all they contain and all they may reveal, they hold for many Americans the 'privacies of life”— Supreme Court Chief Justice John G. Roberts Jr. 

Therefore, the first search may or may not have been legal; the investigator will need to prove that there was an emergency and that there was not enough time to secure a warrant. If the evidence had been in a public place or plain view, the evidence collected will meet the exclusionary rule. However, it would seem that the judge will allow the evidence based on eminent danger of people’s lives, and a known and previous credible informant was used in making the decision to perform a warrantless search.

Second Seizure The second search in this case if a warrant was obtained, the evidence may be admissible because the investigator or officer had a search warrant signed by a magistrate, which stated the place to be searched, along with the items to be searched (American Bar Association). 

Author, Dr. Cheryl O. Cooper, CISSP


References



American Bar Association (n.d.). Rules on Search and Seizure. Retrieved from American Bar Association: http://www.abanet.org/publiced/practical/criminal/home_search.html 

Cornell University of Law School (n.d.). KYLLO V. United States (99-8508) 533 U.S. 27 (2001) 190 F.3d 1041, reversed and remanded. Retrieved from Cornell University of Law School: http://www.law.cornell.edu/supct/html/99- 8508.ZS.html 

Find Law for Legal Professional (n.d.). United States v. Alverez Tejeda: United States of America, Plaintiff-Appellant, v. Ascension ALVEREZ-TEJEDA, aka; Chombi, Defendant-Appellee. No. 06-30289. Retrieved from Find Law for Legal Professionals: http://caselaw.findlaw.com/us-9th-circuit/1024883.html 

Find Law for Legal Professional (n.d.). CITY OF PRATT v. STOVER CITY OF PRATT, Appellee, v. Stuart A. STOVER, Appellant.No. 86,684. October 19, 2001. Retrieved from Find Law for Legal Professionals: http://caselaw.findlaw.com/ks-supreme-court/1427332.html 

Marcella, A.J., Jr., Menendez, D. (2008). Cyber Forensics: A field manual for collecting, examining, and preserving evidence of computer crimes (2nd ed). Baton Rouge, FL: Auerbach Publications. Retrieved from http://digitalbookshelf.southuniversity.edu/#/books/9780849383298/pages/15702259 

Search and Seizure Organization (n.d.). Warrantless Searches. Retrieved from Search and Seizure Organization: http://searchandseizure.org/warrantlesssearches.html

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