A warrant is not necessary if a person allows his or her computer to be examined or seized by the police. A warrant also doesn’t have to be present if another individual with authority over the device allows the search. For example, a person’s boss has the authority to turn over his employee’s work computer.
A computer also can be searched without a warrant if an emergency situation justifies it or if the police believe the computer contains evidence that could be destroyed if left in someone’s possession. In addition, law enforcement can seize a computer without a warrant if a person is attempting to cross an international border with it.
In all other situations, the police will typically need to present a warrant to search a computer in California because a person does have a right of privacy when it comes to owning a personal computer. Law enforcement must seek a warrant through a judge and is only granted that warrant after thoroughly presenting why a search most likely would produce evidence of a crime. This is known as probable cause.
Contesting a Search Warrant to Seize a Computer:
If you believe your computer or hard drive is going to be searched unjustly by police, a skilled defense attorney may be able to question the probable cause before a judge. In fact, a motion to “quash and traverse” commonly is used to challenge the reasoning behind the warrant.
Simply put, this motion challenges the sufficiency and truth of the warrant. This motion can be presented in one of three hearings:
Franks Hearing: A Franks hearing is requested when the criminal defense attorney believes the search warrant or affidavit is not accurate, often due to a false statement. If the attorney is able to convince the judge of the warrants accuracy, the warrant is disregarded.
Luttenberger Hearing: A Luttenberger hearing is used when the identity of the informant is unknown. The purpose of this hearing is to question the reliability of the informant and the motives behind the search warrant.
Hobbs Hearing: The identity of the informant could be revealed in a Hobbs hearing to further question the necessity of the warrant, if a judge chooses to allow for it.
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If you are concerned about the police’s ability to search your computer or hard drive with or without a warrant or have learned a warrant has been issued to search and/or seize your device, contact my office in San Diego, CA. You need to know your rights and what can be done to keep your property personal.