{"id":4492,"date":"2011-01-11T11:47:25","date_gmt":"2010-08-01T00:06:24","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-07-31T12:38:24","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4492","title":{"rendered":"ME: Warrantless “preview search” of hard drive for child porn violated Fourth Amendment, but the warrant would have issued anyway"},"content":{"rendered":"

Defendant was found to have consented to seizure of the portable hard drive to his computer after police asked him about child pornography on it, based on reports from another having seen it when he showed him. The \u201cpreview search\u201d of the computer without a warrant violated the Fourth Amendment, but the search was permissible by inevitable discovery because of defendant\u2019s admissions there was child pornography on the hard drive. The full forensic examination of the computer was with a warrant, and, excluding the preview search from the affidavit, the warrant would have been granted anyway. State v. Nadeau<\/a>, 2010 ME 71, 1 A.3d 445 (2010).* (This case has a helpful analysis of applying the exclusionary rule or not under inevitable discovery, and the court finds that applying the exclusionary rule here would not advance Fourth Amendment interests.)<\/p>\n

The search of defendant\u2019s briefcase at the time of his arrest would have violated Gant, but it was valid as inevitable discovery because it would have been searched at book-in. United States v. Miles, 2010 U.S. Dist. LEXIS 76725 (E.D. Pa. July 29, 2010).*<\/p>\n

One defendant consented to the officers entering the house to look for an alleged runaway, and the court of appeals did not properly consider the audio of the occurrence from one officer\u2019s body recorder where he asked \u201cmay I.\u201d Valtierra v. State<\/a>, 310 S.W.3d 442 (Tex. Crim. App. 2010), revg Eduardo Valtierra v. State, 293 S.W.3d 725 (Tex. App.-San Antonio 2009); Heriberto Valtierra v. State, 293 S.W.3d 697 (Tex. App.-San Antonio 2009). <\/p>\n

Defendant\u2019s stop led to questions simultaneous with the paperwork which led to consent. \u201cAlthough the results of the questioning led to a police-citizen encounter that was longer than it would have been without the questioning, that fact is not relevant.\u201d State v. Gomes<\/a>, 236 Ore. App. 364, 236 P.3d 841 (2010).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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