{"id":1232,"date":"2007-08-15T06:30:26","date_gmt":"2007-08-11T07:50:20","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-08-11T07:50:20","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1232","title":{"rendered":"Taking one’s computer to a technician for installation of a DVD burner is a waiver of the expectation of privacy in videos on the computer that might be found in testing it"},"content":{"rendered":"

By taking one’s computer in for installation of new hardware, the owner of the computer runs the risk that the installer will accidentally find contraband on the computer. Here, defendant took his computer in for installation of a new DVD burner, and the technician installed the software and then searched for a video to test whether the installation worked, and child porn was found and the police called. Defendant relinquished his expectation of privacy in the computer when he took it in. Commonwealth v. Sodomsky<\/a>, 2007 PA Super 238; 2007 Pa. Super. LEXIS 2235 (August 9, 2007).*<\/p>\n

Encounter between a police officer and a parked car in a parking lot qualified as an investigative detention because the defendant would not feel free to leave because the police car parked to shine its headlights into the passenger compartment. Commonwealth v. Collins<\/a>, 2007 PA Super 236, 2007 Pa. Super. LEXIS 2232 (August 8, 2007):<\/p>\n

[*P13] Under these circumstances, a reasonable person would not feel free to drive away or refuse to answer the trooper’s questions. Trooper Walton had not witnessed any violation of the Motor Vehicle Code or any criminal activity. There was no evidence to suggest that the passengers in the vehicle would have expected a police officer to render aid as the vehicle was legally parked and not disabled. Moreover, while the police cruiser did not block the vehicle’s path as in Mulholland<\/em>, the positioning of the marked cruiser perpendicular to the vehicle so that its headlights were aimed directly into the passenger compartment would make it difficult for a reasonable driver to believe he was free to terminate the encounter and drive away. Finally, when the trooper, in full uniform, alighted from his marked vehicle, as its headlights continued to illuminate the passenger compartment, and walked toward a vehicle that was legally parked, not disabled and had otherwise broken no laws, and asked if everything is okay, a reasonable occupant of the vehicle would not believe they were free to leave.<\/p><\/blockquote>\n

Comment:<\/em> We have seen a few of these cases again lately. The whole issue turns on where and how the police car was parked, and whether it blocked the motorist’s route of departure. That is relevant, but not determinative. Here, the police car was parked perpendicular to the car and the headlights were shining in the windows when the officer approached. Would a reasonable person feel free to leave when the officer encounters him? Can any person tell a police officer questioning him that he doesn’t want to talk and just wants to leave? Hardly. These situations, by their nature, are fraught with apparent control and intimidation by the police. Be realistic: these situations are always inherently coercive, and many courts just accept the prosecution’s argument that the motorist was free to leave without critical analysis or application of common sense. The officer is going to have to communicate that fact first, and all we have is their word unless it is on video.<\/p>\n","protected":false},"excerpt":{"rendered":"

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