New Federal and State Court Rulings on Phone Searches

How Courts are Divided on the Scope of Cell Phone Searches Post-Riley

There is no dispute that cell phones contain a lot of personal information. The Supreme Court recognized in 2014 in Riley v. California that a cell phone is “not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life’.” For this reason, the Court held that the police generally need a warrant to search one. But what happens when police do get a warrant? Can they look at everything on your phone?

Well, it depends.

Riley didn’t articulate any standards that limit the scope of cell phone searches, and courts are taking different approaches. While some courts have constrained police searches to certain types of data on the phone, specific time periods, or limited the use of the data, other courts have authorized warrants that allow the police to search the entire phone.

In August, two courts issued significant decisions that illustrate this divide—United States v. Morton from the federal Fifth Circuit Court of Appeals sitting en banc (with the full court), and Richardson v. State from the Maryland Court of Appeals (Maryland state’s highest court). EFF filed an amicus brief in Morton.

Maryland Sets Limits on Cell Phone Searches

In Richardson v. Statethe Maryland Court of Appeals recognized that “the privacy concerns implicated by cell phone storage capacity and the pervasiveness of cell phones in daily life do not fade away when police obtain warrants to search cell phones.”

In this case, Richardson was involved in a fight at a local high school. After a school resource officer broke up the fight, the officer grabbed Richardson’s backpack and discovered three cellphones, a handgun, and Richardson’s school ID. Police determined one of the phones belonged to Richardson and got a warrant to search it.

The warrant was extremely broad and authorized a search for “[a]ll information, text messages, emails, phone calls (incoming and outgoing), pictures, videos, cellular site locations for phone calls, data and/or applications, geo-tagging metadata, contacts emails, voicemails, oral and/or written communication and any other data stored or maintained inside of [the phone].”

The search of the cell phone revealed messages between Richardson and a friend that detailed the planning of a robbery. After being charged, Richardson moved to suppress the information obtained from the phone, arguing the warrant was a general warrant because it authorized a search for “any and all information” and “any and all data.” The trial court denied the suppression motion, and the intermediate appellate court affirmed the denial.

The Court of Appeals reversed this, finding the warrant was impermissibly broad and therefore violated the Fourth Amendment. Because cell phones can contain vast amounts of data, the court held that officers rarely, if ever, can demonstrate probable cause to search everything on a phone, like they attempted in this case.

The court recognized there is no “one size fits all” solution for cell phone warrants, but held the officers requesting the warrant and the judge issuing it “must think about how to effectively limit the discretion of the searching officers so as not to intrude on the phone owner’s privacy interests any more than reasonably necessary.” Effective tools include temporal restrictions, limitations on the apps to be searched, or specific search protocols that agents would be directed to follow. The Court of Appeals concluded that “a search warrant for a cell phone must be specific enough so that the officers will only search for the items that are related to the probable cause that justifies the search in the first place.” Ultimately, the court did not suppress the evidence against Mr. Richardson because it found the officers relied on the warrant in good faith.

The Fifth Circuit Upholds an Overbroad Cell Phone Search

In United States v. Morton, the full Fifth Circuit declined to weigh in on a similarly broad search, finding officers relied in good faith on the warrant. In doing so, the court overturned a panel opinion from the same court in the same case that had rejected the warrant, finding officers were only entitled to search specific areas on the phone. EFF filed an amicus brief in the case when it was before the en banc court.

In this case, state troopers arrested defendant Brian Morton during a traffic stop after officers discovered evidence of drug possession. When searching Morton’s car post-arrest, officers seized three cell phones and applied for a warrant to search the phones. Although the evidence found on Mr. Morton at the time of arrest only supported a charge for simple drug possession, officers alleged drug trafficking in their warrant application, a much more serious crime, and sought nearly unlimited access to the data on Morton’s phone. The judge issued the warrant. While executing this search, officers looked through photos on the phone and found child pornography. This led to a second warrant to further search the phones.

Morton challenged the initial warrant, arguing that it was not supported by probable cause because there is no reason to believe officers would need to search a cell phone to find evidence of simple drug possession. The original Fifth Circuit panel partially agreed with Mr. Morton and held that the affidavits supporting the warrant successfully established probable cause to search the phone’s contacts, call logs, and texts—but not the pictures. Police did not establish that the pictures would contain evidence relevant to the drug crime officers were investigating. Further, the Fifth Circuit panel found that the good faith exception was not applicable, as the officers should have understood that “searching the digital images on Morton’s phone—allegedly for drug-trafficking-related evidence—was unsupported by probable cause.”

The Fifth Circuit’s en banc panel rejected this conclusion. Instead of evaluating whether the police had probable cause to search the entirety of the phone’s contents, the en banc panel evaluated the case under the “good faith exception,” which states that “evidence should not be suppressed when law enforcement obtained it in good-faith reliance on a warrant.” Although there is an exception to this rule for affidavits that are so “bare-bones” that the statements included are conclusory and lack probable cause, the Fifth Circuit found that this exception did not apply. Because the good faith rule applied in this case, the court did not rule on whether there was enough probable cause to support the search of the entire phone.

The dissenting judges disagreed, rebuking the majority for not analyzing the cell phone warrant for probable cause. As the judges argued, “[s]earching a cellphone is much more invasive than a self-contained search of a pocket, compartment, or bag.” Because the affidavit was supported by “sweeping generalizations”—and therefore was a bare bones affidavit—the good faith exception did not apply. The dissenting judges concluded that an officer can now “take refuge in the majority’s holding that he is protected by the good faith exception. This is unjust, unfair, and unconstitutional.”

Decisions like Morton are a setback to the privacy protections for cell phones recognized in Riley. Cell phones contain deeply personal information that should be afforded strong protections by the Fourth Amendment, as recognized in Richardson. As we argued in our Morton amicus brief: “the scope of cell phone searches must closely adhere to the probable cause showing, lest authority to search a device for evidence of one crime mutate into authority to search the entirety of the device for any crime.” Courts should not allow law enforcement to have limitless authority in executing search warrants on cell phones. Instead, courts should follow the approach of the Maryland Court of Appeals—and numerous other courts—and require cell phone warrants that are narrowly tailored to the crime under investigation.

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This blog post was co-written with EFF Legal Intern Allie Schiele and originally featured on EFF.org under the title New Federal and State Court Rulings Show Courts are Divided on the Scope of Cell Phone Searches Post-Riley

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