Digital Evidence: Federal Rules and Common Sense, Part II
Examination of the court's opinion reveals questionable reasoning as to a few key issues. The first issue is one not addressed: standing. Assuming that the plaintiff actually did use the "find my iPhone" application to locate the iPhone at the defendant's residence, and that the application worked properly—it is odd that the phone would be at that location, as opposed to OSCO's evidence locker—it is hard to see what reasonable expectation of privacy, under the Fourth and Fourteenth amendments or any federal or state statutes (none were cited), the plaintiff would have in a phone which was initially in the possession of the plaintiff's fiancé and was thereafter in the possession of OSCO and the defendant.
June 08, 2017 at 05:37 AM
5 minute read
Editor's note: This is the second in a two-part series.
In Pearce v. Emmi, No. 16-11499, 2017 BL153011 (E.D. Mich., Southern Div. May 8), the plaintiff, both individually and as “next friend” of her infant child, brought suit against the defendant, a member of the Oakland County Sheriff's Office (OCSO) who had led a search involving narcotics trafficking and which, inter alia, led to the seizure of three electronic devices from one Cody Furhman, the plaintiff's fiancé. The plaintiff claimed that one of the devices had been at the defendant's residence when it was used to activate an application that directed a monitor in the plaintiff's home to stream audio and visual of the plaintiff—who was nude breastfeeding her infant—to the device, in violation of 42 U.S.C. Section 1983, the Federal Wiretapping Act, and provisions of Michigan state law.
In this part of the article, I examine the court's opinion.
|Analysis
Examination of the court's opinion reveals questionable reasoning as to a few key issues. The first issue is one not addressed: standing. Assuming that the plaintiff actually did use the “find my iPhone” application to locate the iPhone at the defendant's residence, and that the application worked properly—it is odd that the phone would be at that location, as opposed to OSCO's evidence locker—it is hard to see what reasonable expectation of privacy, under the Fourth and Fourteenth amendments or any federal or state statutes (none were cited), the plaintiff would have in a phone which was initially in the possession of the plaintiff's fiancé and was thereafter in the possession of OSCO and the defendant.
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