Strauss-Khan, Phones, & Computers

A question came up in my comments when I checked them this morning:

I am very intrigued about a question related to the NY Strauss-Khan case. Police confiscated the man's phones and computer when he was arrested. His lawyer says messages left on these gadgets may contain sensitive information related to his defense, so he asks that prosecutors be barred from knowing what the messages say. What are the rules? Can the police go through his messages and then decide who has access? Who decides if prosecutors get access to the messages? What if the messages contain an indication of his guilt?

First, I'm sure his defense attorney is right. There is almost undoubtedly info on those phones and computers which the prosecution would love to have and the defense wants to keep from them.

Second, the thing which most likely determines the answer to this is how the police came into possession. If the phones came into possession as part of the search subsequent to arrest or were taken as the defendant checked into jail, then the police probably would have to get a search warrant to actually access the information in them. However, I suspect this is not how the police came into possession of the phones and computers (computers don't often fit in pockets). Most likely the police got the computers and phones as part of a search warrant. It would be a very shoddily written warrant which would call for the seizure of computers and phones, but not call for the search of the information in them. So, a police search of the data would be allowed. In fact, I can't think of any reason that computers would be seized except to search them.

However, there might be a restriction upon the officers' ability to look at the computer content. If the defendant was using the phone or computer to send and receive messages with his attorney there could be privileged information located on them. In such a case, the defendant could ask that the information not be usable by the prosecution; he could also ask the court to stop agents from the prosecution from looking at the information. The remedy here would be to have the judge look over everything in camera (by himself, in his office). As a practical matter, this may not be feasible. The judge is not a forensic computer expert. He may have to try and set a firewall between the prosecutors and their expert so that everything they find on the computer and want to hand over to the prosecution has to be given first to the judge and then, only after he approved it, forwarded to the prosecution.