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Old 05-02-2006, 04:58 AM   #13 (permalink)
The_Jazz
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OK, let me change my scenario a bit to make it match up with Scarfo a little better. In my murder case example, let's posit that the map found is labeled "murder map" but appears blank. Someone tells the police that it's drawn in invisible ink and you need special glasses to read it, glasses that are stored at a second site. Isn't it reasonable to go to the judge with exactly the same evidence they had to get the first warrant with the addition of the new glasses statement to get a warrant for the glasses?

Turning back to Scarfo specifically, you're right that they could not find any evidence on the computer because of the encryption, but they still had whatever evidence allowed them to get the warrant in the first place. The arguement here is not whether or not the original warrant was granted on flimsy evidence (given the eventual outcome, I'd argue that it was not) but the open-ended nature of the second warrant.

As far as the specific information gathered by the keystroke counter, I guess it would depend on what was allowed by the warrant, although in practice once they had the password, it would be a moot point. If I were the judge and were somehow convinced to grant this kind of open-ended warrant, I would compensate by tightening down the kind of information the government was allowed to gather, but that's a personal opinion.

DK, I'm a little surprised at you on this one - usually your examples are much stronger on Constitutional issues. The Scarfo case might be in a slightly grey area, but you usually offer up clear black and white issues. The Maye case doesn't seem to be a Fourth Amendment issue at all. If anything, it's a 2nd Amendment test since there doesn't seem to be any issue about the warrant itself. Not that I'm not enjoying our little exchange here, but it's just a lot more fun when we both argue from strong positions instead of splitting hairs.
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