a) Consent to Search
In R v. Wills (1992) the court found the following criteria necessary for a valid consent search:
1. There was consent, expressed or implied;
2. The giver of the consent had the authority to give the consent;
3. The consent was voluntary (not police coerced);
4. The giver of consent was aware of the police conduct;
5. The giver of consent is aware of their right to refuse to permit the police to engage in the conduct requested and/or may pull their consent at anytime;
6. The giver of consent is aware of the possible consequences of giving consent.
Many legal arguments have arisen due to the consent authority as it pertains to digital evidence.
Many of these arguments involve the giver of consent not actually having the …show more content…
As such, any forensic analysis done on the image of the digital media shall be valid even after the consent was revoked.
b) Search Incident to Arrest
The legal authority for police to search a subject incident to arrest is a common law that recognizes the importance of police safety and the preservation of evidence (Scanlan, 2011).
The general principles of searching a digital device incidental to arrest are: what is sought relates directly to the offence, and there is a reasonable prospect that police will find what they are looking for (Waldock, 2011). In R v. Giles (2007), the court decided that a search of an electronic device incidental to arrest, if done promptly and for the purpose of finding evidence related to the offence that the suspect was arrested for, is allowed. The courts concluded that once lawfully seized incident to arrest, the device in question (Blackberry) could be searched without a warrant, saying that the power to seize is meaningless without the power to search the item. However, recent court decisions have questioned these basic principles and prior court decisions. As earlier mentioned, the case of R v. Morelli (2010) emphasizes how much
In R v. Wills (1992) the court found the following criteria necessary for a valid consent search:
1. There was consent, expressed or implied;
2. The giver of the consent had the authority to give the consent;
3. The consent was voluntary (not police coerced);
4. The giver of consent was aware of the police conduct;
5. The giver of consent is aware of their right to refuse to permit the police to engage in the conduct requested and/or may pull their consent at anytime;
6. The giver of consent is aware of the possible consequences of giving consent.
Many legal arguments have arisen due to the consent authority as it pertains to digital evidence.
Many of these arguments involve the giver of consent not actually having the …show more content…
As such, any forensic analysis done on the image of the digital media shall be valid even after the consent was revoked.
b) Search Incident to Arrest
The legal authority for police to search a subject incident to arrest is a common law that recognizes the importance of police safety and the preservation of evidence (Scanlan, 2011).
The general principles of searching a digital device incidental to arrest are: what is sought relates directly to the offence, and there is a reasonable prospect that police will find what they are looking for (Waldock, 2011). In R v. Giles (2007), the court decided that a search of an electronic device incidental to arrest, if done promptly and for the purpose of finding evidence related to the offence that the suspect was arrested for, is allowed. The courts concluded that once lawfully seized incident to arrest, the device in question (Blackberry) could be searched without a warrant, saying that the power to seize is meaningless without the power to search the item. However, recent court decisions have questioned these basic principles and prior court decisions. As earlier mentioned, the case of R v. Morelli (2010) emphasizes how much