Do the Police Need a Warrant to Search Your Business Website?

The Fourth Amendment protects you against non-consensual and warrantless searches by the government. For instance, a police officer normally cannot search your car for potential contraband–such as illegal drugs–unless you give consent or a judge issues a search warrant based on a finding of probable cause. Similar rules apply to your house or other areas where you have a “reasonable expectation of privacy.”

Federal Court Orders New Fourth Amendment Hearing in Case of Man Charged with Running Fraudulent Precious Metals Website

The “reasonable expectation of privacy” standard can open the door for law enforcement to search non-public areas without a warrant. A recent unpublished decision from the U.S. 11th Circuit Court of Appeals, United States v. Waddell, provides an example of what we are talking about here. This case involved a search of a restricted area of a website without a warrant or the consent of the defendant.

The defendant in this case ran a group of companies that “purported to sell gold and silver,” according to the 11th Circuit’s opinion. The defendant would advertise gold and silver for “below-market rates” on Craigslist. The ads referred customers to the defendant’s website. But after customers used the website to make their purchases, federal prosecutors said the defendant “either never shipped the goods, or he shipped counterfeit goods.”

The U.S. Secret Service, which has jurisdiction over counterfeiting crimes, conducted the investigation into the defendant’s business. A Secret Service agent accessed the non-public back-end of the defendant’s website with the cooperation and consent of the website’s administrator, who was an independent contractor hired by the defendant.

The Secret Service never obtained a warrant. Instead, the administrator volunteered to give the agent login credentials for the back-end on her own accord. An assistant United States Attorney told the agent that this was “okay” since the website administrator “was not acting as a government agent” and therefore did not need a warrant.

The agent managed to gather substantial evidence of the defendant’s guilt via this website access. At trial, and again before the 11th Circuit, the defense moved to suppress this evidence on Fourth Amendment grounds. The trial court ruled the search was legal. The 11th Circuit, however, was not so sure and ordered the trial court to make additional “factual findings” and reconsider the matter.

The main issue here involved who could assert a reasonable expectation of privacy. The website was owned by a corporation, not the defendant personally. At the same time, the defendant was the corporation’s sole shareholder. The trial court said that did not matter–since the corporation was the legal owner of the website, the defendant had no individual expectation of privacy.

The appellate court agreed that “a defendant cannot show a reasonable expectation of privacy in the content of a corporation’s computer website based solely on the defendant’s status as a majority shareholder.” At the same time, given the defendant was the sole shareholder–not just the majority shareholder–and given there was some evidence he may have used the non-public part of the website as something of a personal “filing cabinet,” it was possible he could establish a reasonable expectation of privacy. If so, then the warrantless search would be illegal under the Fourth Amendment.

Contact Florida Criminal Defense Lawyer Jose Baez Today

Courts continue to struggle with how to apply 18th century principles of constitutional law to 21st century technology. This is why it is critical to work with an experienced Orlando white collar crime attorney when facing charges where evidence gathered from computers is often key to the prosecution’s case. Contact the Baez Law Firm today to schedule a consultation with a member of our criminal defense team.

Resource:

scholar.google.com/scholar_case?case=13789575857549521565

https://www.baezlawfirm.com/when-can-police-initiate-a-stop-and-frisk-detention/