Question: Compare and contrast digital evidence and non-digital evidence; Provide three examples of how they are similar and three examples of how they are different

Compare and contrast digital evidence and non-digital evidence.
Provide three examples of how they are similar and three examples of how they are different. You must use the provided course materials for at least one of the examples.

Provide a scenario in which additional investigation and non-digital evidence can be used to corroborate or refute digital evidence findings.
Describe search warrants and how they can be used to obtain digital evidence by specifically answering each of the following questions: 
List each of the requirements of a search warrant articulated in United States Constitution’s bill of rights and how in practice, the police investigator can/does comply with those requirements to obtain a search warrant.

Discuss how a search warrant can be used to obtain digital evidence
Explain how the Plain View Doctrine and Exigent Circumstances may apply to digital evidence.

Be sure to address what the Plain View Doctrine is and the three requirements an officer must fulfill if they are to successfully claim they were operating under the Plain View Doctrine

Describe a scenario in which an officer may claim the plain view applies to digital evidence—what might be an applicable counter argument be in court?

Explain what the exigent circumstances doctrine is and the category of circumstances that qualify as exigent circumstances under the doctrine. 
Describe a scenario in which an officer may claim that the exigent circumstances doctrine applies to digital evidence—what might be an applicable counter argument be in court?

DRAFT / STUDY TIPS:

In contemporary criminal investigations, the integration of digital and non-digital evidence plays a crucial role in establishing the facts surrounding a case. This paper aims to compare and contrast digital evidence and non-digital evidence, exploring their similarities and differences. Additionally, it will delve into the role of non-digital evidence in corroborating or refuting digital evidence findings. The paper will also address the intricacies of obtaining digital evidence through search warrants, considering the constitutional requirements, the Plain View Doctrine, and Exigent Circumstances.

I. Comparing and Contrasting Digital and Non-Digital Evidence:

Similarities:

1. Chain of Custody: Both digital and non-digital evidence require a meticulous chain of custody to ensure their integrity and admissibility in court. In both cases, documenting the handling and transfer of evidence is essential to establish its reliability.

2. Authentication Challenges: Digital and non-digital evidence often face challenges related to authentication. Ensuring that evidence is genuine and has not been tampered with is crucial, whether it's a physical object or a digital file.

3. Relevance to Investigations: Both types of evidence contribute significantly to the investigative process. Non-digital evidence, such as fingerprints or DNA samples, can be as vital as digital evidence, like emails or social media interactions, in building a comprehensive case.

Differences:

1. Nature of Evidence: Digital evidence is intangible and often requires specialized tools for extraction and analysis, whereas non-digital evidence is physical and tangible, allowing for direct observation and handling.

2. Vulnerability to Alteration: Digital evidence is more susceptible to alterations or deletions without leaving visible traces, whereas non-digital evidence is generally more resistant to such manipulations.

3. Speed of Analysis: Digital evidence can be analyzed relatively quickly using advanced forensic tools, while the analysis of non-digital evidence, such as biological samples, might be more time-consuming and labor-intensive.

Course Material Example: One example illustrating the differences between digital and non-digital evidence is the case of United States v. Jones (2012). In this case, GPS data was used as digital evidence to track a suspect's movements. Comparatively, non-digital evidence, such as eyewitness testimony or physical surveillance records, could have provided additional layers of corroboration.

II. Incorporating Non-Digital Evidence to Corroborate Digital Findings:

In scenarios where digital evidence is presented, additional investigation involving non-digital evidence can be crucial in either corroborating or refuting the digital findings. For instance, consider a cyberbullying case where digital evidence points to a suspect's online activities. Non-digital evidence, such as witness statements or school records, may be essential to establish the suspect's physical presence at the alleged times of the cyberbullying incidents.

III. Search Warrants and Obtaining Digital Evidence:

Requirements of a Search Warrant:

To obtain a search warrant for digital evidence, investigators must adhere to constitutional requirements outlined in the United States Constitution's Bill of Rights. The key requirements include:

1. Probable Cause: Investigators must demonstrate to a judge that there is probable cause to believe that a crime has been committed, and digital evidence related to the crime is likely to be found at the specified location.

2. Particularity: The warrant must describe with particularity the place to be searched and the items or information to be seized, ensuring that the search is not overly broad.

3. Oath or Affirmation: The warrant must be based on a sworn affidavit or affirmation, providing a factual basis for the search.

Application to Digital Evidence:

Digital evidence requires special consideration in search warrant applications. Investigators must specify the types of digital evidence sought (e.g., emails, files, logs) and the electronic devices or storage media to be searched.

IV. The Plain View Doctrine and Digital Evidence:

Plain View Doctrine:

The Plain View Doctrine allows law enforcement officers to seize evidence without a warrant if it is plainly visible and the officer has a right to be in the location where the evidence is observed. For the doctrine to apply, three requirements must be fulfilled:

1. Lawful Presence: The officer must have a legal right to be in the location where the evidence is observed.

2. Immediate Apparent Illegality: The incriminating nature of the evidence must be immediately apparent to the officer.

3. No Search Intent: The officer must not have conducted a search to find the evidence; its discovery must be inadvertent.

Scenario and Counter Argument:

Consider a case where an officer, while legally present in a suspect's residence to execute a search warrant for physical evidence, inadvertently discovers a computer with explicit digital content in plain view. The officer may claim the Plain View Doctrine applies. However, a counter argument could assert that the officer had a preconceived expectation of finding digital evidence, challenging the inadvertent discovery requirement.

V. Exigent Circumstances and Digital Evidence:

Exigent Circumstances Doctrine:

Exigent circumstances allow law enforcement to bypass the usual requirement of obtaining a search warrant if there is an immediate threat to public safety, the imminent destruction of evidence, or the need to prevent a suspect's escape.

Scenario and Counter Argument:

Imagine a case where law enforcement, tracking a suspect engaged in hacking activities, believes the suspect is in the process of remotely deleting critical digital evidence. The officer may claim exigent circumstances to enter the suspect's premises without a warrant. A counter argument might question whether the situation truly constituted an immediate threat to public safety or the imminent destruction of evidence.

Conclusion: In conclusion, the integration of digital and non-digital evidence is integral to modern criminal investigations. While digital and non-digital evidence share similarities, their differences necessitate nuanced approaches in collection, analysis, and presentation in court. The careful application of search warrants, adherence to constitutional requirements, and consideration of legal doctrines such as the Plain View Doctrine and Exigent Circumstances contribute to the ethical and effective use of digital evidence in law enforcement. As technology continues to advance, it is imperative that legal frameworks evolve to address the challenges and opportunities presented by the digital landscape.