This video purports to tell the story of thieves in Britain who broke into a home and stole a laptop computer, only to find it contained images of child sex abuse (apparently “child pornography” is out as a term these days). The thieves did the right thing and turned it into the authorities. Because British law, in at least some circumstances, allows illegally-obtained evidence to still be evidence, they busted the laptop owner and then rewarded the thieves for doing the right thing by not prosecuting them.
How would this have panned out if it had happened in the US? I know that if it had been the police who went into the guy’s home (without a warrant) and found the laptop, no court in this country would allow it as evidence, on 4th-Amendment grounds. But if the thieves were just regular guys, would this evidence still be inadmissible?
And as for the thieves themselves, I imagine it’s going to vary from prosecutor to prosecutor. Some would drop the charges on “doing the right thing” grounds, some would probably prosecute them for possession of CP for having possessed the computer for however long it took to bring it to the station.
Hard to say whether any thieves would risk turning the laptop over to the authorities. I think some would and they’d say they ‘a mysterious dude’ sold them the laptop on the street. Not likely finding themselves in serious trouble however they went about it.
The evidence would not be excluded as illegally obtained. The 4th amendment applies against government actors, not private citizens, as long as they weren’t acting at the behest of law enforcement.
There would potentially be some chain-of-custody issues though.
Once the laptop came into police possession, they would likely need a warrant to search the contents of the computer though.
And the folks who turned it in would not likely be prosecuted for possessing the images, but could very well be prosecuted for burglary.
AIUI, “illegally obtained evidence” only applies if it’s the cops who obtained the evidence by illegal means. If anybody else, like a burglar, obtains evidence, then it’s fair game to use in court.
IANAL, but I can give kinda an analogous example from Canada, and it did involve police illegally obtaining evidence. During a traffic stop, police searched a man’s car in what was later deemed an illegal search, conducted without a warrant or consent and without reasonable grounds for suspicion. They found an enormous stash of illegal drugs in the trunk (I think it was mainly cocaine). The man’s defense that the search was illegal made it as far as the Ontario Superior Court, AFAIK, which ruled that the offense was so serious that it outweighed the “illegal search” technicality.
I don’t recall if the police officers suffered any consequences, but IMHO they should have, because they, too, broke the law. I think that’s not only reasonable but essential, but evidence thus obtained is still evidence.
I doubt this kind of evidence would be accepted in the US which tends to be more absolutist about everything, such as allowing hate speech on First Amendment grounds.
I could see there being admissibility issues depending how long the thief had possession of the laptop and how often he used BEFORE handing it over to the police.
Like say the thief had the laptop for six months and used almost daily before he noticed the illegal content. It would make it harder for the prosecution to prove the former owner was responsible and NOT the thief himself.
About 20 years ago, I worked for a company that provided private investigation services to corporate clients. We commonly conducted computer forensics on equipment owned by a client and assigned to individual employees. Usually, we were looking for evidence of theft of intellectual property or misuse of some type (including financial irregularities). In most cases, it was the intention of the client to keep the incidents or offenses out of the hands of legal authorities. Got to protect that stock price, after all.
Finding inappropriate material related to children was a big fear of ours. For one thing, we had no legal shield. Even though we had no intention to distribute any material of that type we might encounter, we would still be in possession of it. The first time we saw anything that could POSSIBLY be illegal, we had to immediately contact the client and tell them, “Sorry, it’s out of our hands now. We’re delivering everything to the authorities.” Of course, we had to scrub any copies of data we had made and complete affidavits to that effect. We actually had verbiage addressing the possibility (including the fact that the client would have to pay our hourly rate for the time we spent with investigative authorities) in our standard contract for services.
Bonus: We also did electronics countermeasures work. Several times we identified wiretapping, eavesdropping, or tracking devices installed by state or Federal authorities. Believe me, it’s not like what you see on TV and in movies.
It would only take a few minutes to transfer GBs of data onto the laptop. I could see this laptop as grounds for a search warrant, but I can’t see how it alone could lead to a criminal conviction–or even an arrest. Otherwise, if you’re really pissed off at someone, you could just steal their laptop, upload illegal photos and videos onto it and turn it in to the police. Way more fun than “swatting”.
ETA: I’m assuming the pictures/videos were not created by the laptop owner. If they depicted the owner, his/her children or his/her house, it would be a different story.
Don’t want to hijack, but will just say that you have a somewhat awkward situation. You’re getting paid to find out if someone is being surveilled, but you legally can’t tell the client if it is a legitimate, authorized interception. Had one client who, as it turned out, was selling illegal cable boxes and was under federal investigation. His checks were good, though. Had another one running illegal video poker. His checks were not good. I think both were convicted.
We actually had standard language to use in our report. Basically, we told them we did not discover any evidence of past or current “unauthorized interception.” Very few clients asked about authorized interceptions.
Though surely that would be an argument (likely a successful one) the defense could use in court, not a reason the evidence is inadmissible?
And it’s not really comparable to swatting as it would require the burglar to perjure themselves in court (not mention carrying out a burglary and then admit to it)
The laptop by itself may not.be super compelling evidence, the laptop and the testimony of the burglar to where they found it and what was on it seems like a reasonable case to me? But IANAL.
There are but AFAIK there is nothing a reasonably skilled individual would not be able to fake (I could be wrong though there made be harder to fake records in the hardware that could be used to show when a particular bit of the disk was written)
I think the big question is whether such evidence would justify a search warrant. People who are just consumers can avoid the most serious trouble if they turn on their sources. The way things are now with online availability they probably don’t have much info to trade on any more. But they’ll certainly use the possibility of planted evidence on a stolen laptop to avoid or minimize prosecution.
To me (and again IANAL) the laptop alone might not be if the burglar had just left it on the police station door step with a note, but the laptop and a sworn affidavit saying where it was found and what was on it would be.
I mean any piece of evidence against someone can theoretically be made up and the result of perjury, but without some specific evidence to say it was it’s still admissible.
TBH that might be the main problem with a case like this in practice. If this was a police officer testifying about where the laptop was and what was on it almost nothing could convince an American jury they are lying, a self confessed criminal is not going be as compelling regardless of the facts of the case.