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Fourth Amendment news--Effect of Kyllo in Ninth Circuit's Borowy from 2/17?

By John Wesley Hall, Jr.

Susan Brenner on CYB3RCRIM3, published Kyllo and "A Forensic Software Program" poses this question: Is use of sophisticated software to search a computer a Kyllo-type search? She is discussing United States v. Borowy, 2010 U.S. App. LEXIS 3056 (9th Cir. February 17, 2010) (posted here). Apprently Kyllo was belatedly injected into the case, and possibly not raised in the motion to suppress. The Ninth Circuit did not foreclose the possibility Kyllo would apply, not just here. At one level, a Kyllo argument seems a viable option in circumstances like those at issue in the Borowy case because they are analogous to the circumstances at issue in Kyllo, at least in one respect. In both instances, law enforcement captures information that is being broadcast from inside a home (the most sacrosanct “place” for 4th Amendment purposes)...continue to full post

Full post as published by Fourth Amendment on February 22, 2010 (boomark / email).