As regular readers know, one of the big issues in computer search and seizure law that I often write about is how to limit searches of computers. If it is necessary to search everything to find evidence, and information outside the scope of the evidence sought can be used in plain sight, does a computer search with a warrant not result in a general search – of the kind that the Fourth Amendment? was enacted to prevent. My answer to this conundrum is that the Fourth Amendment requires restrictions on use for digital searches. You can search your entire computer, but you cannot use evidence outside the scope of the warrant.
In the past two years, however, some state courts have sought to limit computer searches through new interpretations of the particularity requirement. I think this is wrong and thought I’d explain why.
Consider a recent example from the Michigan Court of Appeals, People against Carson. In Carsonthe government obtained a search warrant to search a seized cell phone in order to arrest him as requested by the Riley v. California. The government had arrested Carson for working with his girlfriend to steal $70,000 in cash from her neighbor’s safe. The government then obtained a warrant to search the phone for “records or documents related to the investigation of a building burglary and a safe break-in.” Officers searched the phone and found text messages between Carson and his girlfriend discussing the crime. The text messages were later used during the trial to prove the crime.
The Michigan Court of Appeals decided this Carson that the warrant had a glaring Fourth Amendment flaw — a flaw so serious, in fact, that Carson’s conviction must be overturned even though his attorney never even challenged the warrant during the trial. According to the court, Carson’s conviction should be overturned because his attorney was ineffective by not contesting the warrant, since if the attorney had filed that motion, the warrant would have been deemed unconstitutional and the evidence suppressed since the good faith exception it would not have applied. to such an obvious mistake.
What, then, was the obvious mistake? According to the court, the warrant allowed a search through the entire phone for the requested evidence. This was clearly wrong, the court argued, because the warrant should have been limited to the specific apps and file types that the agents had specific reason to believe would require evidence:
[I]It would have been entirely appropriate to issue a warrant authorizing the police to carry out a search of the contents of the telephone limited to the correspondence between the two regarding the crimes; this includes SMS messages, Internet-based messaging applications such as Messenger or SnapChat, direct messages sent via social media platforms such as Instagram or Twitter, email and other similar applications. The warrant that was actually issued placed no limits on the scope of the search and authorized the police to search everything, specifically mentioning photographs and videos. Allowing the search of the defendant’s photographs and videos, despite there being no evidence to suggest that these files would produce anything of relevance, is particularly troubling in light of the tendency of people in our modern world to store photographs and videos on the Internet compromising themselves with romantic partners. their mobile devices. Additionally, people can usually directly access file storage systems like Dropbox and Google Drive right from their phones, creating a whole new realm of personal information that police have been given free license to examine. The pandemic has also seen the rise of applications such as “BetterHelp” and “Talkspace” through which people can have text message-based sessions with their therapists, and applications such as “MyChart” allow for mobile storage of detailed medical records and private conversations. between patients and doctors. Simply put, this mandate authorized precisely the form of “wide-ranging exploratory research that the authors intended to prohibit.” Hughes, 506 Mich at 539 (quotation marks and citation omitted). Indeed, there are probably many people who would consider an unrestricted search of the contents of their mobile device to be a deeper violation of their privacy than the kind of general search of a home that the framers originally intended to avoid.
According to the court, any decent lawyer would have realized that this was an egregious mistake, to the point that the good faith exception would not have applied and the lawyer was incapable of not discussing the matter.
But it seems to me that the error belongs to the Michigan Court of Appeals, not to the defense attorney. This is the same mistake made by the Fifth Circuit’s initial panel United States v. Morton before the court en banc upheld the search under the good faith exception and declined to address the issue on its merits. As I blogged in 2021, in response to Mortone,
The location of the phone, or perhaps the phone itself, is the place to search. And you have reasonable grounds to believe the evidence is in the phone. That’s all the government needs, I think. It makes no more sense to limit the government’s search of the place to be searched to particular forms of evidence than it makes sense to limit the search of tax records in a home to “documents stored on 8.5 X 11” paper or “articles in boxes designed for storing documents.” As underlined by the Supreme Court n Ross v. United States“[w]when a legitimate search is underway, and when its purpose and limits have been precisely defined, fine distinctions are made between cabinets, drawers and containers. . . must give way to interest in the quick and efficient completion of the task at hand.” Everything in the place to be searched can be searched.
I certainly understand Carson concern of the court. It’s the right concern. It’s just the wrong way to approach it. The animating idea is to limit what can be seized in plain sight by allowing the government to look only at particular places on the digital device where evidence is most likely to be stored. If the government were allowed to search only a few places, the thinking goes, they wouldn’t see much. And as a result, only a certain number of things can be clearly visible.
That’s why the Carson The court is concerned about people who have compromising photos on their phones and apps with which they communicate with therapists. The court is concerned about the cost/benefit ratio of allowing research into that material: if research into that material is allowed, then the government can use it, disclose it, post it on the Internet, and do a lot of other terrible things on the outside . the mission of law enforcement. That would be bad. And as I have argued before, there is a simple answer to this concern: The Fourth Amendment should impose a restriction on the use of non-responsive data in the digital context.
But not letting the government look at particular types of files makes no sense. There is no telling in advance where digital evidence of a crime will be found. Some apps or file types may be more likely to provide evidence than other apps or file types, but you can’t rule them out. Take Carsonthe worries of looking through photographs. Based on news stories and cases, it appears to be common for people who steal things to take photos of what they steal, storing the images of the loot on their phone. In a stolen property case, why should the government be prohibited from rummaging through phone photos to look for that evidence?
Of course it’s true Riley requires a warrant. But once the government has probable cause and obtains a warrant, it should be allowed to search an entire phone for evidence based on the warrant, just as they might search an entire house. If the government gets a warrant to search a house for a knife used in a murder, the warrant won’t limit the search to the knife drawer in the kitchen just because a judge thinks that’s where knives usually go. The knife could be in the knife drawer, sure. But it could be in a closet, bedroom closet, or under a floorboard. The warrant should allow the government to carry out searches there too. The answer is restrictions on use, not arbitrary limits on where the government can look.
THE Carson The court also raises a question about accessing cloud-stored content from your phone, but that obviously looks different: a cloud search from a phone is a cloud search, not a phone search. As always, stay tuned.