Yeah, no chain of evidence, etc. But you could use it to get a warrant.
So does the lack of a chain of custody actually make it inadmissible or does it just allow the defense to bring up in the time between the burglary and it being handed over to the police, and how many people (many of them avowed criminals, the burglar, the burglar’s girlfriend, his smack dealer, etc.) had access to it and the ability to tamper with it in that time.
It would allow the defence to ask to judge to rule it out as evidence. IAMAL so i cant tell you how many judges would say yes, but I can tell you this is very doubtful evidence.
In our case, the big clue was the visit from the nice agent shortly after we swept the target site(s). SOP was to leave the device, apparatus, or connection in place until conferring with the client and/or attorney.
Seems like if you want to make it airtight, you quietly show it to the authorities so they have grounds to get a warrant, return it to the original owner, wait a week, and then execute the warrant. Newly saved and modified files are uncontestable evidence of the guy’s activity.
Though I suspect that is only a viable option if the owner is a famous (ideally non white) celebrity with a history of supporting BLM and police reform 
So I’m not sure I understand this. I mean the laptop wasn’t in custody until it was handed over to the police. How is that any different to a laptop the police came across in their legitimate duties?
You are maybe a lawyer?
It’s exactly like a laptop the police come across in their legitimate duties. That’s the problem. If they find a laptop in possession of person A, they can’t go arresting person B for possession of media depicting child sexual abuse. Now, if the person or children in that media is readily identifiable, that’s a different matter. If the video is of person B raping a child, then the charge isn’t (only) possession of media depicting child rape, it’s raping a child. I didn’t view the link, so maybe that’s what happened in this situation?
If the pictures don’t show the perpetrator, or the suspect’s own children, then why should the police believe someone who says, “Here is this random laptop. I found it in the house of Mr. Smith. Go arrest him!” They can probably believe him enough for a warrant if the rest of the story checks out and seems believable. But that’s about it.
Forget about what the judge would say. What district attorney would think the right move is to file charges with such flimsy, ambiguous and easily defensible evidence? The right move is to get better, more solid evidence first. This is not just the strategically superior route, but it’s also the morally superior route. Don’t got jumping to conclusions with such weak evidence. By all means, investigate it, though.
I mean it’s not proof beyond reasonable doubt of that. But it’s evidence towards that case, particularly if supported by sworn testimony indicating it was person Bs laptop.
The argument was it would not be admissible as evidence, not that there weren’t very obvious things the defense could bring up to detract from it
My point was that a district attorney doesn’t need the judge to say it is inadmissible to realize the problems with it in the first place. A good DA is going to see the problems with it before ever filing charges. I don’t think it would ever make it in front of a judge.
If there are “obvious things the defense could bring up” to refute the evidence, then it is not good evidence. The DA wants convictions. They don’t want to waste time with trials they will easily lose. And why should they? That road leads to false convictions. If there are obvious things that the defense can bring up, then there is reason to believe the evidence is questionable. The sworn testimony from an admitted felon doesn’t make it much more compelling. I would personally have doubts if an admitted burglar made such a claim about a laptop he stole. My first assumption would be there is some ulterior motive. Why would anyone believe him? Why should the DA believe him? It would be worth looking into, but that’s about it. If nothing is found after execution of a search warrant, I’d be even more convinced the burglar was lying for some reason.
So are you saying that if the police found it in person B’s house, it wouldnt be the basis for a for prosecution? That seems trivially untrue there are plenty of prosecutions based on just that.
In the case in OP where a third party handed it over to the police there is less compelling evidence (because of that gap where it wasn’t in person Bs possession, and you only have the burglar’s word it was in their possession at all) but it’s still a pretty good amount of evidence. At the very least it would probable cause for a search warrant (and in practice of course it wouldn’t get to court the DA would offer a plea deal for a lesser offence which person B would almost certainly take rather than risk a long sentence)
Also while I’ve not heard of the exact circumstances of the OP it’s very common for prosecution to be based on a third party who has a legitimate reason to access the computer (i.e. the IT guy) finding illegal content (IIRC this is how Jared “the subway guy” was caught).
And yet, cases go to court all the time when the prosecution knows what arguments the defense will make, and plenty of people have been convicted on the testimony of admitted felons.
It probably still wouldn’t be enough evidence, by itself. But the prosecution probably would include it, among many other pieces of evidence. It might even be essential for the case, even though it’s uncertain on itself: For instance, if the laptop shows images as having been downloaded at certain dates and times, that doesn’t mean much by itself, and if subpoenaed ISP records show the owner accessing Tor nodes at certain dates and times, that also doesn’t mean much by itself, but if the times of accessing Tor nodes correspond with the times of download of all of the images, suddenly that’s a very strong case.
Because the laptop wasnt in the suspect’s hands either. Who knows what people could have done to it since then?
Some DAs would file just to get the suspects name out in the press, so even if the case was dismissed, the suspect could be fired from his job, etc.
From felons. Who may have done things to the computer- or not.
And anything is admissible, if the judges lets it is. Here, any competent lawyer would object, and the Judge would grant a hearing.
Yep, a good DA certainly, yes.
No. I’m saying that if they find it in Person A’s house and Person A says, “It’s not mine. It’s Person B. I swear.” They can’t just go arrest Person B.
If they find it in Person B’s house. Yes, they can arrest Person B.
This seems pretty ludicrous on the surface, at least-- an offense so serious that it makes illegal search & seizure fine & dandy?
If you venture down that legal path, would it be permissible in Ontario for police officers to go inside people’s homes and bedrooms at any time and without permission in order to search for armed nuclear weapon devices (or other “serious enough” offenses)?
To flip it around: at what point does an offense become trivial enough that illegal searches are actually illegal?
Really scratching my non-lawyer head about this one. Kooky, IMO.
That wasn’t the point. The converse question is, if evidence of a serious crime is found, is ignoring the evidence fine & dandy if you don’t like the way the evidence was obtained?
No, it absolutely is not permissible, and police officers who do so should be fired and potentially charged with a crime. The standing of the evidence they obtain is a different matter entirely.
The law in Canada is getting somewhat off topic here, but I’m just emphasizing the pragmatic aspect. Illegal searches are always illegal, but evidence is also always evidence. I can’t find the specific example I was referring to, but here is a related ruling from the Supreme Court of Canada:
The reasonable expectation of privacy concept has worked well in Canada. It has proved to be reasonable, flexible, and viable and should not be abandoned in favour of the discredited rule of automatic standing.
R. v. Edwards - SCC Cases
Canada doesn’t have an automatic exclusionary rule. It’s discretionary under s 24 of our Charter:
Link to Wikipedia article:
I believe the admissibility of illegally obtained evidence boils down to:
- Whether or not said evidence was discovered by law enforcement, or
- Discovered by a private individual(s) at the behest of law enforcement.
Yes, that’s the distinction. In Canada, if the evidence is so overwhelming that the court’s opinion is that allowing an exclusion would bring the “administration of justice into disrepute” then the court can admit it.
The Canadian constitution is a relatively recent document, and contains bits that are based on public opinion of where the US rules were considered to fail at times. Should evidence of a very serious crime - rape, murder, industrial quantities of drugs, etc. - be excluded on the “technicality” that the search wa illlegal? They allowed a loophole.
Similarly, most Canadian rights in the constitution can be overridden by the parliaments (Federal or provincial) with a special “notwithstanding” for a limit of 5 years. (Thus allowing the general public to weigh in with their opinion during the next election.)
The American absolute rule - evidence is automatically excluded - was seen as being far to strict. So in Canada, for the police it’s a crapshoot. If the courts think the offense is not serious enough, an illegal search results in excluded evidence.