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ARE COMPUTERS FILES SUBJECT TO “PLAIN VIEW”?

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In the case ofUnited Statesv Stabile, WL294036 (3d Cir. 2011) the court addressed the issue of whether or not a search of computer files could fall under the doctrine of  “plain  view”.  In this case detectives were given consent to search a home in connection with a counterfeit check crime. The search included computer files.

As a result of the consent search, a warrant was obtained to do a more complete search of computer records for financial crimes. During this search of the computer files, several file names seemed to indicate child pornography. At this point does the plain view doctrine apply to allow the detectives to view the actual content of the file?

The plain view doctrine has three elements.  First, the initial intrusion must be legal.  Second, the evidence seized must be in “plain view”. Third, the illegal nature of the evidence must be obvious.

The law in this area is still developing and will continue to do so for years to come.  The problem in this area arises because one can name a computer file anything and crooks do exactly that in order to hide incriminating evidence. One would think that they would not name a file which suggests child porn, but who knows what goes through their minds.

The courts have not settled on what is “plain view” on a computer and what is not.  As is usual in these cases where the law is developing, some courts have allowed the entire file and contents in as plain view while other courts have chosen not to allow files in under the plain view doctrine.

What to do?  If you have a consent search that turns up files that look interesting or if you have a search warrant for one type of file and turn up another type of file, ie porn, then the best course of action is to obtain a warrant or another warrant as the case may be for the files you want to search.  That is what was done in this case and the evidence was allowed in.

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