Home » Eliminating the “Plain View” Exception to the Warrant Requirement

Eliminating the “Plain View” Exception to the Warrant Requirement

INSTRUCTIONSPlease answer both Discussion questions at the bottom of this page. Make sure I have at least one whole page of content to answer the questions. Both questions should be answered separately, but on the same page. Please cite all references in APA. All sources needed to cited correctly. My instructor is very strict and all information needs to be original. I can’t afford to be flagged for Plagiarism, so be very original. The information listed below, is some text that the instructor provided as reference. BOTH QUESTIONS ARE AT THE BOTTOM (LABELED DISCUSSION QUESTION#1, AND #2).In 2015, a decade after he first wrote that eliminating the plain view doctrine might make sense, Professor Kerr wrote that the idea still has “considerable merit.”He argued for a rule which would prevent law enforcement officers from using any evidence which, although lawfully seized, was not within the scope of the original warrant (i.e. was”non-responsive”). Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data 48 Texas Tech Law Review 1, 4 (2015) (Sources 2- Kerr- Use Restrictions -2015)) and Week 2 Lecture -“Efforts to “Minimize and Limit.”For instance, if, while executing a warrant for evidence of drug trafficking, a CF examiner comes across evidence of the crime of extortion, agents could not use the “extortion evidence” as the basis for a new extortion investigation. “(2) The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and shall not be subject to further review, use, or disclosure except pursuant to a court order or to comply with discovery as required by Sections 1054.1 and 1054.7. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.” CalECPA, Section 1546.1(d)(2)Fear of “General Warrants”The underlying concern is that law enforcement officers will turn warrants to search computers into “general warrants” – a “warrant to search everywhere for evidence any crime”- warrants that reportedly aroused colonists prior to the American Revolution. Some experts have said that this is how agents obtained evidence that prompted the controversial 10/28/2016 “Comey letter.” That is, they allegedly used a warrant that authorized them to search Anthony Weiner’s computer for evidence of sexting to search for evidence that Hillary Clinton was criminally negligent in handling classified documents. (The two Comey letters and second warrant and affidavit to search Weiner’s computers are in “Sources 2.”) Discussion Question# 1 Is Professor Kerr right? Do we need new rules for computer searches? Does it make sense to do away with the “Plain View Doctrine” in computer searches? Discussion Question #2 California’s Electronic Communications Privacy Act (CalECPA) which went into effect in 2016 contains a provision, containing a requirement for all warrants for electronic information, which the problem (copied in pertinent part below). Is this a reasonable solution?

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