Police may search the files and data on your computer ONLY under one of the following circumstances:
- When they have a valid search warrant authorizing them to do so;1
- When you or someone else with authority over the computer has given them consent to do so;2
- When you are carrying the computer across an international border (including at airports);3 and
- When they have reason to believe that an emergency justifies a search of the computer without a warrant (for example, a search will help them prevent someone's death or physical injury).4
In addition, authorities may seize your computer—but not necessarily search its contents—without a warrant, if they have reason to believe that this is necessary to prevent the destruction of evidence in a criminal case.5
These rules apply to any device that stores electronic data, including:
- Desktop computers and their hard drives;
- Laptop computers and their hard drives;
- External drives like “flash drives” (also known as “thumb drives”) and “zip drives”; and
- Tablet computers.6
Courts have also recently refined the law on police searches of cellphones—which is very similar to the law on police searches of computers.7
Here are some examples of situations where police may lawfully search your computer under California's search and seizure laws:
- After accumulating reliable evidence that you have violated California's embezzlement laws by taking money from a charity you help run, the police obtain a search warrant from a judge. The warrant authorizes them to search all of your electronic (computer) files that are stored in an electronic folder labeled with the name of that charity.
- Your boss gives the police permission to search the computers of all the employees of the company, which are provided by the employer and subject to a company firewall.
- An undercover informant tells police that you are involved with a human trafficking ring and that your laptop computer contains files and emails that will help them identify the location of the victims so they can rescue them.
Remedies for an illegal police search of your computer
Under the Fourth Amendment to the U.S. Constitution, you have the right to be free from unreasonable “searches and seizures” by law enforcement.8
If law enforcement officials search your computer or hard drive without a warrant or another justification, then they may not use any evidence they find against you in your criminal jury trial.9 (This is what is known as the “exclusionary rule.”)
To ensure that evidence from an illegal search of your computer is not used against you, your criminal defense attorney should file a Penal Code 1538.5 motion to suppress evidence as part of the pretrial process in your case.10
In order to help you better understand when police can legally search your computer/hard drive in California, our California criminal defense attorneys will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Police may search your computer, tablet, or other device that stores electronic data in the following circumstances:
Most police searches of computers and hard drives require a valid search warrant.11
Police must apply to a state or federal judge for a search warrant.12 Judges will issue search warrants for computers if they determine that:
- There is “probable cause” to believe a felony has occurred, and
- It is likely that the search will yield evidence about it.13
Example: Police discover that Joseph has uploaded a child pornography video onto a “peer-to-peer” file-sharing network.
The police apply to a judge for a search warrant. They argue that the fact that Joseph uploaded the video gives them probable cause to believe he is in possession of other digital child pornography videos or images.
The judge agrees—and grants the police a valid warrant to search all photo and video files on all the computers and digital storage devices (including flash drives) that Joseph owns or uses regularly.14
A valid search warrant for a computer must describe—in specific terms—both
- the devices and files to be searched, and
- the evidence that is being searched for.15
And if the search either
- includes devices or computer files other than those described in the warrant, or
- yields evidence other than that described in the warrant,
then it is considered invalid. The evidence from that search cannot be used against the defendant.16
The requirement we just discussed above—that police searching a computer with a warrant search only the particular files described in the warrant—poses special challenges with searches of computer files.
Ordinarily, the search warrant requirement is subject to something called the “plain view” exception. This gives a police officer the right to search or seize evidence not described in the warrant IF:
- The evidence is in “plain view” while they are conducting their search; and
- The evidence is obviously incriminating.17
The problem is that police often try to use the “plain view” exception to justify opening and looking through all the files on a computer—even when the warrant only applies to a particular kind of file or a particular kind of evidence.18
But according to Palm Springs criminal defense lawyer Michael Scafiddi19:
“The specificity requirement for search warrants still applies to searches of hard drives and other computer storage. Judges should make it clear that warrants apply only to certain types of files likely to yield evidence about a crime—and police should know that this is not a free pass to open every file on a computer.”
On the other hand, if a computer file has an obviously incriminating name, then the “plain view” exception means police may be able to open and search it even if it's outside the scope of the warrant.20
Example: Police arrive at Tony's house with a warrant to search his computer for evidence about a real estate scam that could lead to Tony being charged with mortgage fraud.
While looking through files related to the scam, the officer comes across a subfolder called “Underage XXX.” He opens the folder and finds that it contains lots of “jpg” (photo) files.
The officer opens several of these and finds that they contain images of child pornography.
Because of the plain view exception, the child pornography images can probably be admitted as evidence against Tony—the folder name made them subject to the “plan view” exception.
BUT . . .
After finding the child porn, the officer proceeds to search every single file on Tony's computer—and a flash drive that was not described in the original search warrant.
On the flash drive he finds some images of Tony engaged in sexual activity with an underage female.
The images on the flash drive probably can't be used to charge Tony with PC 261.5 statutory rape . That is because they were not part of the original warrant and were not in plain view during the search authorized by the warrant.
Even without a warrant, police may search the files of your computer if you consent to them doing so. (This “consent exception” to the warrant requirement applies to all law enforcement searches, including police searches of homes and police searches of cars.)21
And you do not actually have to be the one who personally consents to a search of your hard drive or computer. The consent may be given by anyone who reasonably appears to police to have the authority to give it.22
This means that, for example, police may rely on consent to search a computer if it is given by
- your spouse or live-in girlfriend/boyfriend,
- your roommate,
- a co-worker or boss, or
- a family member,
IF s/he also uses and has access to the computer (for example, knows the password to unlock it).23
Example: Police show up at Elmer's house without a warrant, based on an anonymous tip that Elmer is trading child pornography on the internet.
Elmer is not home—but his wife is. She consents to a search of the computer that she and Elmer both use for email, games, and internet surfing.
The police find child pornography images on the computer. They may use these as evidence against Elmer, because the computer search took place with his wife's consent.24
But your (or someone else's) consent to a warrantless search of your computer hard drive is only valid if you give it freely and voluntarily.25
This means that your consent will not authorize a search of the files on your computer without a warrant if, for example,
- police draw their guns (or otherwise threaten physical force if you don't consent),26 or
- police tell you they have a warrant to search your computer—and that later turns out to be false.27
Police, customs and immigration officials, and other law enforcement officers may search the files on your laptop computer or tablet at an international border—regardless of whether they have any reason to believe it contains evidence of a crime.28
This rule applies to international airports as well as to typical border crossings—and to U.S. citizens as well as non-citizens.29
Example: Michael, an American, is returning to the U.S. on a flight from the Philippines. As he is passing through U.S. customs, a border official randomly decides to open his laptop and look through his photo folder.
Michael's photo folder contains several images of child pornography. He is later arrested on these charges.
This search is entirely legal, even though the customs official had no prior reason to believe Michael's computer contained evidence of a crime.30
Certain emergency situations may also give the police the right to search the data on your computer without a warrant.31
For example, police may be able to search your computer files if they can show an immediate need to do so in order to
- pursue a fleeing suspect, or
- assist someone who is seriously injured or threatened with imminent injury or death.32
In order for a computer search to be valid because of these “exigent circumstances,” the police must be able to point to specific facts that led them to believe such an emergency existed.33
Example: Andrea and José are two police detectives working undercover to infiltrate a criminal street gang . Members of the gang they are working with find out about their identity. They attempt to kill José, but he escapes.
José then contacts his colleagues at the police department. They tell him that Andrea has gone missing.
José tells his colleagues that there is a computer in one gang member's apartment that contains information on all of the houses and apartments used by the gang for their illicit activities. He suspects that the gang members may have taken Andrea to one of these places.
There is no time to get a warrant, but the police go to the gang member's computer and search that computer anyway, in the hopes of finding clues about Andrea has been taken.
This computer search is probably not illegal, because it was done in an emergency in order to prevent physical injury to Andrea.
Finally, police are permitted to seize your computers, tablets, external drives, etc., without a warrant, if they have reason to believe that they contain criminal evidence that may otherwise be destroyed.34
This does not mean that they can search through the files and data on your computer or another electronic storage device. It just means that they can hold onto it while they apply for a warrant to search its contents.35
Example Let's return to Elmer from our example above. When police come to his house without a warrant, his wife gives permission for them to search the computer they share, and they find child pornography files on it.
The police also notice an external “flash drive” on Elmer's desk. His wife has never used it herself and does not even know what it is. So the police conclude that she has no authority to consent to a search of the flash drive.
But they are also concerned that there is more child pornography on the flash drive—and that Elmer will easily be able to erase those files once he learns from his wife that the police have visited his home.
So the police take the flash drive back to the station with them and keep it there while they apply for a warrant to search its contents.36
The rules for work computers are the same as those for computers you use personally. Police may search them with a warrant, with consent, or in an emergency.
But in many cases police will carry out searches of workplace computers with only the consent of the employer—and not the consent of the employee who actually uses the computer.37
Whether your employer has authority to consent to a search of your work computer depends on the exact circumstances under which you use the computer. As a general matter, if the employer exercises control over the computer and how it is used, then s/he has authority to consent.38
Example: Jeffrey works for a company that supplies him with a computer in his private office. Jeffrey is the only person who uses that computer, and he has a personal password to log into it.
But Jeffrey's use of the internet goes through a “firewall” that allows his firm's information technology (“IT”) department to monitor his internet usage. Every so often the IT employees will review a log of the websites employees have visited.
Also, the IT staff at his company have the ability to access his machine even without his personal password.
Given these facts, Jeffrey's employer has the authority to authorize a police search of his work computer.39
On the other hand, if you were to bring your own laptop or tablet to work and leave it in your office, your employer would probably not have the authority to consent to a police search—even if you sometimes used the laptop or tablet for work-related activities.40
You may not be convicted of a crime in California on the basis of evidence from an illegal police search of your computer or other electronic data storage device.41
If you are the victim of an unlawful computer search, you and your criminal defense attorney will probably want to file a Penal Code 1538.5 motion to suppress evidence from that search, before your trial begins.42
And if that evidence is key to the prosecution's case against you, then you may be able to get the charges against you reduced—or even dismissed altogether.
Call us for help…
For questions about when police may search your computer/hard drive in California, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on Nevada search and seizure laws, please see our page on Nevada search and seizure laws.
Electronic Frontier Foundation —information about the rights of citizens, including criminal defendants, with regard to electronic data and devices.
1 Riley v. California (2014) 134 S.Ct. 2473, 2485. (“We therefore decline to extend Robinson to searches of data on cell phones [and probably computers/hard drives as well], and hold instead that officers must generally secure a warrant before conducting such a search.”)
See also Adam Liptak, Major Ruling Shields Privacy of Cellphones , The New York Times, June 25, 2014. (“The ruling [Riley v. California] almost certainly also applies to searches of tablets and laptop computers . . . .”)
See also Supreme Court Makes a Good Call Protecting Cellphone Privacy , Kansas City Star, June 27, 2014. (“The same goes for tablets and laptop computers. Though not specifically mentioned in the opinion deciding Riley v. California, its reasoning will likely be found to apply to any device in which citizens store electronic data [including computers and their hard drives].”)
2 Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219. (“It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search [including a search of computer files] that is conducted pursuant to consent.”)
See also United States v. Smith (D.Ariz. 2010) 2010 WL 1949364, at *6. (“A third party's consent to the search of another's belongings [including computers and hard drives] is valid if the consenting party has either actual or apparent authority to give consent.”)
3 United States v. Arnold (9th Cir. 2008) 523 F.3d 941, 944-46. (“Searches of international passengers at American airports are considered border searches because they occur at the “functional equivalent of a border”. . . . Courts have long held that searches of closed containers and their contents can be conducted at the border without particularized suspicion under the Fourth Amendment. . . . Therefore, we are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”)
4 Riley v. California, endnote 1, above, at 2494. (“Moreover, even though the search incident to arrest exception does not apply to cell phones [or probably to computer hard drives], other case-specific exceptions may still justify a warrantless search of a particular phone [or search of a particular computer]. “One well-recognized exception applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search [of a computer or computer files] is objectively reasonable under the Fourth Amendment.' ” Kentucky v. King, 563 U.S., at ––––, 131 S.Ct., at 1856 (quoting Mincey v. Arizona,437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. 563 U.S., at ––––, 131 S.Ct. 1849.”)
5 United States v. Smith, endnote 2, above, at *8. (Given the ease with which evidence could be altered or destroy on the thumb drive [drive for storing computer files], its seizure was justified based upon exigent circumstances.”)
6 See endnote 1, above. See also United States v. Smith, endnote 5, above.
7 See Riley v. California, endnote 1, above.
8 U.S. Const., amend. IV [protects people from unreasonable searches of their computers]. (“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.”)
9 Penal Code 1538.5 PC – Motion to . . . suppress evidence [from an invalid computer search]. (“(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable. (B) The search or seizure with a warrant was unreasonable because any of the following apply: (i) The warrant is insufficient on its face. (ii) The property or evidence obtained is not that described in the warrant. (iii) There was not probable cause for the issuance of the warrant. (iv) The method of execution of the warrant violated federal or state constitutional standards. (v) There was any other violation of federal or state constitutional standards.”)
10 See same.
11 See Riley v. California, endnote 1, above.
12 Penal Code 1523 PC – Definition [of search warrants, including for searches of computers]. (“A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and, in the case of a thing or things or personal property, bring the same before the magistrate.”)
13 Penal Code 1525 PC – Issuance; probable cause; supporting affidavits; contents of application. (“A search warrant [for a police search of a computer] cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.”)
14 Based on People v. Schesso (9th Cir. 2013) 730 F.3d 1040.
15 See Penal Code 1525 PC – Issuance; probable cause; supporting affidavits; contents of application, endnote 13, above.
See also United States v. Tamura (9th Cir. 1982) 694 F.2d 591, 595. (“It is highly doubtful whether the wholesale seizure by the Government of documents not mentioned in the warrant comported with the requirements of the fourth amendment. As a general rule, in searches made pursuant to warrants [including warrant searches of computer files] only the specifically enumerated items may be seized.”)
16 Penal Code 1538.5 PC – Motion to . . . suppress evidence [from an invalid computer search], endnote 9, above.
17 See Horton v. California (1990) 496 U.S. 128, 138.
18 United States v. Comprehensive Drug Testing, Inc. (9th Cir. 2010) 621 F.3d 1162, 1176. (“This pressing need of law enforcement for broad authorization to examine electronic records, so persuasively demonstrated in the introduction to the original warrant in this case, see pp. 1167–68 supra, creates a serious risk that every warrant for electronic information [every warrant to search a computer or other electronic storage device] will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant. The problem can be stated very simply: There is no way to be sure exactly what an electronic file contains without somehow examining its contents—either by opening it and looking, using specialized forensic software, keyword searching or some other such technique. But electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed. By necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there. Once a file is examined, however, the government may claim (as it did in this case) that its contents are in plain view and, if incriminating, the government can keep it.”)
19 Palm Springs criminal defense lawyer Michael Scafiddi is a former police officer and police sergeant. He knows how the police gather evidence, which means he understands how they apply California search & seizure laws to computer searches…and knows when they have overstepped those laws. He represents clients in all San Bernardino County courthouses and Riverside County courthouses.
20 Horton v. California, endnote 17, above.
21 Schneckloth v. Bustamonte, endnote 2, above.
22 United States v. Smith, endnote 2, above.
23 United States v. Matlock (1974) 415 U.S. 164, 171. (“These cases at least make clear that when the prosecution seeks to justify a warrantless search [of a computer or other electronic device] by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”)
24 Based on the facts of United States v. Smith, endnote 2, above.
25 Bumper v. North Carolina (1968) 391 U.S. 543, 548-49. (“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search [of a computer or hard drive], he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”)
26 See People v. McKelvy (1972) 23 Cal.App.3d 1027, 1034.
27 See Bumper v. North Carolina, endnote 25, above, at 548. (“The issue thus presented is whether a search [including a search of computer files] can be justified as lawful on the basis of consent when that ‘consent' has been given only after the official conducting the search has asserted that he possesses a warrant. FN11 We hold that there can be no consent under such circumstances.”)
28 United States v. Arnold, endnote 3, above.
29 See same.
30 Based on the facts of the same.
31 Riley v. California, endnote 4, above.
32 See same.
33 People v. Ray (1999) 21 Cal.4th 464, 472. (“This justification [emergency exception to warrant requirement for searches of computers] requires specific, articulable facts indicating the need for ‘swift action to prevent imminent danger to life or serious damage to property . . . .'”)
34 United States v. Smith, endnote 2, above, at *8. (“The Court finds the agents had probable cause to believe evidence was present on the thumb drive. Given the ease with which evidence could be altered or destroy on the thumb drive, its seizure was justified based upon exigent circumstances.”)
See also Riley v. California, endnote 1, above, at 2486. (“Both Riley and Wurie concede that officers could have seized and secured their cell phones [or their computers or other electronic storage devices] to prevent destruction of evidence while seeking a warrant. See Brief for Petitioner in No. 13–132, p. 20; Brief for Respondent in No. 13–212, p. 41. That is a sensible concession.”)
35 See same.
36 Based on United States v. Smith, endnote 2, above.
37 See, e.g., United States v. Zeigler (9th Cir. 2007) 474 F.3d 1184.
38 Same, at 1191. (“We are also convinced that Frontline could give valid consent to a search of the contents of the hard drive of Ziegler's workplace computer because the computer is the type of workplace property that remains within the control of the employer "even if the employee has placed personal items in [it]."”)
39 Based on the facts of the same.
40 See same, at 1189. (“Mancusi compels us to recognize that in the private employer context, employees retain at least some expectation of privacy in their offices [and protection from unauthorized warrantless searches of their personal computers].”)
41 Penal Code 1538.5 PC – Motion to . . . suppress evidence [from an invalid computer search], endnote 9, above.
42 See same.