The intention of the search and seizure law is to prevent illegal search and seizure of personal properties by the enforcement. According to Kerr (2005) the law was meant to protect the citizens by upholding their right to privacy and reasonableness from the government agencies but not from private individuals. Any agency which intends to perform a search and seizure must do so under a warrant and only seizes the listed items on the warrant if the search was successful. In a situation whereby, a person has been suspected to have committed cybercrime, the agency responding to the issue must seek for a warrant from a neutral magistrate which will permit them to search and seize any digital evidence that shall be used in taking action to the culprit against cybercriminal activities. They use the evidence to create a concrete need to apprehend the person against cybercrime assisted by the computer forensic specialists in extracting the data required. There are two ways through which search can be performed in case of suspected cybercrime activities: through warrant or without warrant.
According to Murphy (2013), there are exemptions through which agencies can perform search and seizure without warrant are;
Situation 1: Consent- This is where an individual complies with the enforcement agencies to do a search and seizure without being coaxed or tricked by the agency into doing so. In this circumstance, the police can go ahead and search without a need for a warrant.
Situation 2: plain view- If the evidence is visible, agencies are given a go ahead to continue and search for the evidence and seize if need be.
Situation 3: Search Occurrence to Arrest- In a situation where the police have arrested a suspect, they don’t need to have a warrant to perform a search and seizure in the victim’s premises so as to gather more evidence pertaining the arrest. Police have all the right to gather more evidence pertaining a related arrest crime associated with a cybercrime that could otherwise be destroyed.
Situation 4. Exigent circumstances: If the police perceives that the time to be taken in acquiring a warrant would jeopardize the safety of the public or result to the loss of evidence, then a search without a warrant can be performed.
Situation 5: Boarder search- This is where government should be able to monitor any item that may be deemed entering the country illegally, the court recognizes the necessity of border searches to be more intrusive unlike local locations.
Kerr, O. (2005). Searches and seizures in a digital world. Harv. L. Rev., 119, 531.
Murphy, E. (2013). The politics of privacy in the criminal justice system: Information disclosure, the fourth amendment, and statutory law enforcement exemptions. Michigan Law Review, 485-546.