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Does the plain view doctrine, a 4th Amendment exception that police officers routinely take advantage of, apply to computer searches?  The 1st, 4th, and 7th Circits have all said yes, however, the 9th Circuit has said not.

The 4th Amendment is a Constitutional right against unreasonable searches and seizures, and it is a right that the founding fathers of the United States held to be vital to a structured and free society.  Questions of whether an unfettered search of person’s personal computer violates this right is one that state and federal courts across the nation are grappling with, as the number of computers and the plethora of information stored on them continues to grow.  The problem often arises when investigators know that there is evidence of a crime in the data files of a computer, but don’t know where exactly.  Unfortunately, the only way to find it then involves searching for and opening most, if not all, of the files located on the computer, which may then lead to the discovery of evidence of other crimes.

The plain view doctrine is what allows an officer who is at a location legally, either by virtue of a search warrant or a warrant exception, to not have to ignore criminal evidence that he was not necessarily expecting to find in the first place.  This rule makes logical sense; if an officer has probable cause to enter the home to arrest a robbery suspect, why should he have to pretend the did not see the cocaine on the table?  The catch, however, is that the evidence must be in plain view.  It has to be a chance sighting by an officer who is only doing what he is already legally allowed to be doing.  But, does this logical rule make sense when it comes to computers?  The opening of files is necessary to find the evidence sought, but does this farther than the plain view doctrine was initially designed for?

Until the Supreme Court or Congress speaks on the issue, officers and courts across the nation must make individual decisions.  For now, officers would be best to stop the search as soon as evidence of a new crime is discovered, and get a search warrant to continue looking.