As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence of officer inadvertence, despite its lack of necessity, are properly doing so as a means of analysis for cyber cases to more suitably adjust to the searches of computers and related technology. The Tenth Circuit has knowingly disregarded Supreme Court precedent, and this continues its disagreement with the Fourth Circuit. This perpetuates a circuit split that should be resolved by the Supreme Court. In anticipation of a judicial resolution, this article was written to outline the problem and explain the positions of the circuits that have addressed this issue. Part II will provide an overview of the fourth amendment, focusing on the history of the plain view doctrine and the Supreme Court’s examination of officer inadvertence when analyzing plain view search cases. Part III shifts the focus into the modern era of cyber law cases and how those cases involving plain view searches have been analyzed. Particularly, this section explains and illustrates that various circuit courts of appeal have been explicitly choosing not to follow Supreme Court precedent when analyzing cyber law cases. Part IV examines the Supreme Court’s acknowledgement of differences between cases involving technology and cases that do not have a technology component. This article takes the position that the circuit courts that have deviated from prior Supreme Court precedent are consistent with what the Supreme Court would likely rule if the issue of officer inadvertence in plain view cyber-related searches arose before the Court today. Part V explains the need for guidance from the Supreme Court to resolve confusion faced by circuit courts deciding cases involving cyber-related searches subject to the plain view doctrine.
Michelle Zakarin, Requiring What's Not Required: Circuit Courts Are Disregarding Supreme Court Precedent and Revisiting Officer Inadvertence in Cyberlaw Cases, 16 Charleston L. REV. 63 (2022).
Charleston Law Review