Cell phone searches have long presented an awkward problem for the courts. On the one hand, cell phones contain significant information and are certainly capable of containing evidence of crimes. On the other, search warrants must be supported by probable cause to believe evidence of crime would be discovered, and particularized to the location and type of evidence government investigators may search for.

Allowing the search of an entire phone on the grounds that historic location evidence might place a suspect at or near the scene of a crime may also reveal evidence of unrelated crimes, and is very likely to reveal information of a very personal nature, including such potentially sensitive matters as search engine queries, personal photos, private conversations in messaging apps, etc. Allowing the search of an entire phone is closer in nature to the type of "general warrant" that has always been contrary to the law of the United States; indeed, general warrants (allowing searches that are essentially fishing expeditions not necessarily supported by probable cause) were among the revolution-inspiring grievances cited in historical documents.

In a decision described by Prof. Orin Kerr as "remarkable", the 5th Circuit Court of Appeals recently ruled that a warrant allowing the search of a drug suspect's phone was unconstitutionally broad, because the warrant allowed search of the phones' photos for evidence related to drug possession. In United States v. Morton , police had arrested a man after a traffic stop revealed small amounts of drugs and paraphernalia. The police apparently developed a suspicion that the man was involved in something of a sexual nature, based upon items found in his van. They sought and obtained a search warrant for the phones found during the arrest. However, the warrant they obtained were for evidence of the crimes of arrest, namely, drug possession. They made no reference to the sex-related stuff found in the vehicle in the warrant application, which allowed access to the phones' photos, among other categories of data.

Invalidating the warrant as it applied to photos and thus suppressing the trove of child pornography found therein, the Court of Appeals announced what amounts to a new rule for cell phone search warrants: probable cause must be established for each different type of data to be searched in the phone.The facts recited in the warrant application were insufficient to support probable cause to believe that photos stored in the phone would lead to evidence regarding drug possession or any other crime described in the warrant application. Going even further, the panel rejected the government's argument that the error should be excused because the officers relied in "good faith" upon the warrant. The information provided was sufficient to support a valid search warrant for three categories of information, text messages, contacts, and call logs, but searching photographs was a bridge too far. Although the permissible categories of data might reasonably found by a user of drugs, there was no credible reason to believe there was probable cause to believe that evidence of crime would be found in pictures on the phone. Thus, the evidence discovered in the photos was suppressed as the fruit of an unlawful search.

In the article linked above, Prof. Kerr argues that this ruling was unnecessary, and that courts should instead compartmentalize and merely exclude evidence discovered by an over intrusive search that exceeds the probable cause described. I disagree.  (On first glance- I have not read his entire law review article on the subject) the approach the Professor urges does not appear to take into consideration or address the issue of so-called "evidence washing" -- where the government discovers information illegally, and manufactures probable cause to justify a search. His proposal of "use restrictions" doesn't address what would be expected of investigators who find information of a type or in a place that is no supported by the probable cause described in a search warrant application. Would they be expected to ignore it? Perhaps a question for another day. Nevertheless, the linked article  is a good read, and if anyone has commentary based upon his linked law review article, I welcome it. It is probably important to note that a 5th Circuit decision is not binding authority in North Carolina, though the decision of a different circuit can certainly be persuasive.

I have successfully argued for evidence suppression, and take a particular interest in search and seizure issues- often involving drugs or guns. I provide free consultations for criminal matters, and I defend any misdemeanor in Wake County, and felony charges in state and federal court statewide. Give me a call to discuss your matter 919-828-1456.