We are constantly on our smartphones, laptops, gaming consoles and connected televisions.  Technology makes it very difficult to disconnect from the Internet.  This raises some serious legal challenges when it comes to the Fourth Amendment’s prohibition against unlawful searches and seizures.

Spousal privileges can make our communications more challenging to protect. Spousal privilege in Florida has limited exceptions and Florida Statute 90.504 provides that communication between spouses is privileged. A spousal privilege simply means that a married person should be able to confide in their spouse without the fear that it will later be revealed to a third party.  This privilege can even be enforced against a non cooperating spouse.

An example of this could be a husband that decides to film a guest in their house without that person’s consent. This is unfortunately more common than you may think and you can find numerous news stories about this happening on a frequent basis. The friend, who might be staying with the couple, discovers the hidden cameras and reports this to the wife.

The wife confronts the husband at lunch in a public place, he breaks down and admits his wrongdoing to his wife and asks for her forgiveness. The wife immediately drives home, accesses the husband’s computer (without his permission) and finds files on the computer that implicate him even further. The wife then calls the police and tells them very clearly that this computer is ONLY used by her husband and not jointly used. She admits that she logged into the computer without her husband’s consent. The investigators have her sign a consent to take and search the computer from the home.

This is a difficult situation because many judges and juries will be entirely sympathetic to the friend that was a victim of invasion of privacy. However, the Constitution of the United States of America protects us all and justice is blind. The defense attorney for the husband can file a motion to suppress all of the evidence against him and raise spousal privilege.  The legal arguments that can be raised to a judge are:

  1. Spousal Privilege – all of the statements made to the wife are privileged and must be suppressed. There are limited exceptions which may apply.  However, there is a strong legal argument that can be made to exclude a spouse’s statements.  
  2. Fourth Amendment – The defense attorney will file a motion to suppress the evidence found on the computer as an illegal search and seizure. They will argue that the wife cannot consent to take and search the computer as it belongs entirely to the husband and she admitted that she did not use the computer. She only accessed the files after she was upset with her husband and learned of his wrongdoing.  A computer is a modern day personal filing cabinet that can leave a permanent record of past conduct.

The police in this case could have easily secured a search warrant from a judge or magistrate to seize and search the computer and all its files by a forensic examiner. The fact that they did not do this could lead to all the evidence being suppressed and the case being ultimately dismissed.

This case illustrates the importance of NOT speaking with the police if you are being investigated for a crime.  Speaking to an expert criminal defense attorney must be your number one priority.  A Board Certified Criminal Trial lawyer can immediately protect your rights and challenge all of the evidence obtained in your case.

Call Attorney Adam Pollack today for a FREE criminal defense consultation at (407) 834-5297