E-mail and Warrant Requirements

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 When is a Search Warrant Required?

Search warrants are court orders which give law enforcement the right to search an individual’s home or other property for evidence in connection with a criminal offense. United States citizens have the right to be free from searches of their homes or belongings by law enforcement without proper procedures being followed, with a few exceptions.

Part of the procedures includes obtaining a search warrant. Search warrants are legal documents which have been signed by judges and grant law enforcement the right to search specific locations for specific items.

In order for a search warrant to be issued, law enforcement will be required to prove to the court that they have probable cause. Probably cause means that there is a basis for the belief that there is evidence connected to a specific offense on a specific property.

Generally, search warrants are required any time an individual’s reasonable right to privacy may be violated by law enforcement’s search of their:

  • Residence;
  • Vehicle; or
  • Person.

Without a search warrant, any evidence which is obtained during a search is generally excluded from a trial which subsequently occurs. Warrantless searches are permitted when the searches involve:

  • Individuals who have already been unlawfully arrested;
  • Vehicles which have been properly stopped with probable cause;
  • Individuals who have consented to being searched;
  • Individuals who have been detained for an investigation;
  • Areas which are in plain view to law enforcement; and
  • Evidence which may be lost or destroyed if it is not immediately seized.

How Do Search Warrants Pertain to Email?

If a judge signs a search warrant, a law enforcement officer will have the legal right to search a specific space for specific materials or objects. What most individuals think of when they think of a search warrant is when an individual’s home is searched for evidence which relates to a crime.

A judge will only sign off on a search warrant if probable cause exists for law enforcement to believe that a specific object which is relevant to a criminal offense is located in a specific location. All of this information must be included in the search warrant.

How Can the Police Access Your Emails?

In some cases, information which is relevant to a criminal investigation may be located in an individual’s email. The process for obtaining relevant information which is believed to be located in an individual’s email account works differently.

Law enforcement may contact an individual’s service provider, such as Google or Yahoo, which will provide them with an email account to obtain access to the information they seek. Although a warrant is not always required, there are certain circumstances in which law enforcement will still be required to obtain a warrant in order to access an individual’s email, including:

  • The email is in transit;
  • The email is only stored on an individual’s home computer; or
  • The email is stored in a remote location, is unopened, and is less than 180 days old.

Older emails which are not protected, however, may still be inaccessible. If law enforcement attempts to access an individual’s email through their computer or cell phone, they would need a warrant to take an individual’s device or to use an individual’s advice without their permission.

Are there Any Laws that Protect Your Email Privacy?

Yes, pursuant to the Electronic Communications Privacy Act (ECPA), law enforcement may access emails without a warrant if those emails are stored in the cloud and are at least 180 days old. This law, however, is outdated and lawmakers are attempting to pass new legislation, the Email Privacy Act.

This Act would update the ECPA by requiring law enforcement to obtain a warrant for any email search. Currently, this law has not been passed. Emails which are in remote storage and are opened or are older than 180 days do not require a warrant to obtain.

In these cases, law enforcement is only required to obtain an administrative subpoena. An administrative subpoena is issued by a federal agency without the approval of a judge and is easier to obtain.

For more information regarding email privacy, please see the following LegalMatch articles:

What if My Emails Were Stored at My Work Computer?

In general, individuals have a lower expectation of privacy in the workplace. If law enforcement attempts to search emails which are kept on the employer’s server, the employer can allow law enforcement to do so without the employee’s permission.

This is due to the fact that the email and the server belong to the employer. State laws, however, may provide guidance regarding workplace searches which may limit an employer’s rights.

In addition, if an individual’s employer grants the employee any rights in the contract over emails they compose on the job, the employer may be required to notify the employee prior to turning the emails over to law enforcement. Regardless of this, it is important to be aware that employers are generally permitted to monitor and disclose an individual’s company emails.

If an individual uses their personal email at their work computer, then it is possible for that email to be accessed. It is important for an employee not to store private passwords on their work computer because their employer has the right to allow law enforcement to access their work computer and cell phone.

What Happens When Search Warrant Requirements Are Violated?

In general, the legal remedy for violations of search warrant requirements invokes what is referred to as the exclusionary rule. The exclusionary rule provides that any evidence which is obtained as the result of improper or illegal searches will be excluded from the evidence records at trial.

When evidence is excluded, it may be referred to as suppression of evidence. Although this rule does not prevent search warrant violations from actually occurring, it does help to discourage law enforcement and other authorities from violating the applicable search warrant rules.

If an individual believes their rights have been violated in connection with a law enforcement search and they have suffered harm or loss as a result of that violation, it may be possible for the individual to sue the law enforcement agency for their violation. This, however, is a complex legal situation which generally requires the assistance of a lawyer.

An individual’s rights are extremely important and their lawyer can help to ensure that they receive justice if their constitutional rights were violated by law enforcement.

Do I Need to Contact an Attorney if I Feel That a Search of My Emails Was Illegal?

It is crucial to have the assistance of a criminal defense attorney if you believe that a search of your emails was conducted illegally. Your attorney can review your case and determine whether law enforcement followed the proper required procedures when conducting an email search.

If your attorney believes that the proper procedures were not followed or that any of your rights were, in fact, violated, they may argue to the court that the evidence which was uncovered during the unlawful search should not be used in court and should be deemed inadmissible. Having an attorney on your case gives you the best chance of having illegally obtained evidence excluded because an attorney will know the best way to argue for evidence exclusion.


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