Posted on 04/15/2010 12:49:03 PM PDT by nickcarraway
A federal judge from Florida ruled that a man who forgot to remove a thumb drive from a shared computer waived his Fourth Amendment rights to privacy claims to the content on the device.
According to Computerworld, the ruling by Judge Maurice Paul of the U.S. District Court for the northern district of Florida, was in response to a motion filed by Octavius Durdley an emergency paramedic with the Bradford County Emergency Services in Florida. Apparently, Durdley was charged last September with possessing and distributing child pornography based largely on evidence gathered from a personal thumb drive of his that he had inadvertently left behind in a shared work computer.
The ruling – which was decided last month – was analyzed this week by The Volokh Conspiracy, a blog comprised of several law professors.
“’Yes,’ says Judge Maurice Paul in United States v. Durdley, 2010 WL 916107 (N.D. Fla. 2010), handed down on March 11. I haven’t seen any cases quite like this, but I tend to think the decision is wrong. In this post, I wanted to explain the decision and then say why I find its reasoning rather unpersuasive,” argued blogger Orin Kerr, a George Washington University law professor. Durdley claimed that the information gathered from the thumb drive had resulted from a warrantless search of his personal property. Computerworld reported that he asked for the evidence from the thumb drive, and that gathered from a subsequent search of his house, to be suppressed asserting Fourth Amendment rights against unreasonable search and seizure.
The Fourth Amendment of the United State Constitution covers search and seizure rights, which states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It's not a crime to possess banking/mortgage/credit details, so the issue would not have come up. Also, if someone found the thumb drive and used said details to commit a crime, the method by which they learned the details would be irrelevant.
Actually, you can make a stronger argument that you have an expectation of privacy if you take your computer in for repair. After all, it’s an ethical violation for the repair person to disclose your data or even to examine it himself beyond what’s necessary to accomplish the repair. However, I seem to recall cases where kiddie porn users were turned in by repair techs, and the convictions stuck.
Sorry. There is a difference between leaving evidence you committed a crime where it can be found, and using found information to commit a crime.
Yep... I was going to point that out, too. There's a huge defect in the "evidence", inasmuch as there's nothing to prove that he was the one that put files on the thumb drive instead of somebody else that got hold of it after he left it behind.
Sounds like a lawyer who was more interested in making his bones in a flashy first amendment case rather than defending his client.
Your argument is good. However the stuff on thumb drive gave them “probable cause” for a warrant to search his house. ON the computer there they found more things and copy's of the porn that was on the thumb drive. He wanted to suppress the evidence that was found after the search (with a warrant) of his home.
Yah... that’s a tougher one. I don’t know if the thumb drive by itself is good enough probable cause for a warrant on the home. It could be I suppose... but if another judge tossed the warrant I could see that justification too.
Ah, well... I guess that’s what judges are for.
Even thou the husband was arrested, she filed for divorce, and he was kicked out of the home pending charges, She was not interested in the stalker. The stalker really starting pushing, scared the woman. Some cop decided the “TIP” that led them to the computer might have come from the stalker.
Searched his home and found a complete copy of not only all the child porn but everything else that was on the home computer including family pictures, etc...
Very scary, because you are GUILTY and he was very luck..
Lose!
.
That doesn’t mean the court made the correct ruling. Thou you are correct. I’m really concerned about the errosion of our rights.
With encryption so cheap and easy to come by, that would be no sweat anyway. A fool is a fool.
In which case an examination of his home computer would have exhonerated him.
.
I’ve done computer repairs, and usually we have to copy and paste files so that if something was to happen during the repair, we wouldn’t lose your personal files. If we were to stumble apon child pornography, morally we cannot turn away. Anything else, you would really have to investigate to figure out, and would be an ethics violation in my mind because you are going further then you normally would. Personally if you don’t want your files to be discovered, all computers can have their hard drives removed easily, and just swap a new one in. Reload the operating system only takes 1-2 hours. There is no way to trace back information on a computer if you swap the hard drives, considering all the information is stored there, and all other forms of memory in a computer are temporary, or system bios.
~Shadowjudge~
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