Consent to search a computer for evidence that defendant was a victim of identity theft was a ruse to look at his hard drive for child pornography. The search thus exceeded the consent. United States v. Richardson, 583 F. Supp. 2d 694 (W.D. Pa. October 31, 2008):
Quite simply, the agents in the case sub judice made an assumption that the Defendant's computers would contain child pornography because the evidence from Operation Emissary indicated that the Defendant made two failed attempts to access "ILLEGAL.CP". Their assumption proved correct, but only after consent to search the computers was obtained in order to look for evidence of unspecified "['illegal'] credit card activity over the Internet", not images of child pornography or any images for that matter. Kilpatrick did not look for catalogued evidence of Internet activity as stored upon the two personal computers. Kilpatrick searched for images, images that could not have been on the computers as a result of the two known failed attempts to access a child pornography Web site. These failed attempts were the basis for the agents' vague and unspecified Internet activity described to the Defendant and his wife. The search for images proceeded to look for evidence of another instance of crime different from the failed attempts to access the "ILLEGAL.CP" Web site. The search that was conducted was not only outside of the scope permitted by the Defendant, but also outside of the scope of what the agents were aware of after a review of the evidence received from Newark ICE.
. . . A search for images of child pornography is beyond the scope of the vagaries of the "['illegal'] credit card activity over the Internet" and seeks one thing, the presence of child pornography that the agents knew was not related to the information of the January and February 2006 attempts presented to Lieb by ICE Newark. This search for images was beyond the scope of the consent granted. Searching for images of child pornography relates to a separate crime, one unrelated to the ruse which was presented and for which the ruse did not provide a basis for the consensual search. Lieb and the other agents thus used the vagueness of their request based upon evidence of an undisclosed, attempted crime to obtain a voluntary consent in order to search for evidence of a separate crime, one for which they did not believe the Defendant was a victim, but in fact the sole perpetrator. The search for images of child pornography was far afield from the voluntary consent to search for evidence of "['illegal'] credit card activity over the Internet", activity which unbeknownst to the Defendant was the two failed attempts to purchase access to the "ILLEGAL.CP" Web site.
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"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé LePew
"There is never enough time, unless you are serving it."
—Malcolm Forbes
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)