Comparing Cell Phones To Houses Not Exactly Deterring Use Of Generalized Warrants, Court Finds

from the the-analogy-that-almost-worked dept

Wed, Jan 20th 2016 11:23pm — Tim Cushing

Sometimes the courts realize today's smartphones can't be reasonably compared to anything else people have historically carried with them, like wallets, address books and the contents of their pockets. In the Supreme Court's Riley decision, it noted that searching a smartphone is roughly analogous to searching someone's house -- people's entire lives are contained in these devices. Hence, the warrant requirement, which turns phones from a "container" to the most sacrosanct domain under the Fourth Amendment.

Sometimes, though, the house analogy works against defendants and their smartphones, as in this recent case highlighted at FourthAmendment.com. A warrant application to search a suspect's cell phone was broadly (and badly) written, asking for basically everything the device could conceivably contain.

In his affidavit, which was attached to his application for the warrant, Walker set out the substance of the investigative interviews and concluded by stating: "Based on the above facts . . . I have probable cause to believe [the defendant's] cell phone contains valuable information that will link the victim/suspect ([the defendant]) and suspect/victim (Lerouge) to the crime." Walker received and executed a warrant to search the defendant's iPhone for the following:

"Subscriber's name and telephone number, contact list, address book, calendar, date book entries, group list, speed dial list, phone configuration information and settings, incoming and outgoing draft sent, deleted text messages, saved, opened, unopened draft sent and deleted electronic mail messages, mobile instant message chat logs and contact information mobile Internet browser and saved and deleted photographs on an Apple iPhone, silver and black, green soft rubber case. Additionally, information from the networks and carriers such as subscribers information, call history information, call history containing use times and numbers dialed, called, received and missed."

The suspect sought to suppress the photographs found on his iPhone -- ones in which he was holding a gun and wearing the same jacket as the person sought in connection with a shooting.

The court did have problems with the warrant as written.

The warrant is awkwardly written, conflating at least in part the items to be searched for and the places to be searched. We agree with the dissent that as written the warrant and the warrant application are overly broad.

But it found that considering what would need to be viewed to determine whether or not it was evidence of criminal activity, the search did not exceed the limits of the warrant.

[C]onsidered in conjunction with the affidavit incorporated therein, a commonsense reading shows that the warrant authorized a search of various types of files for evidence of communications that would link the defendant and another person to the shooting.

In its decision, the court applied the house analogy (tipping a hat towards the Riley decision) and found the broad range of content searched to be roughly equivalent to the search of a residence with a warrant.

In the physical world, police need not particularize a warrant application to search a property beyond providing a specific address, in part because it would be unrealistic to expect them to be equipped, beforehand, to identify which specific room, closet, drawer, or container within a home will contain the objects of their search.

So, when searching the phone, the government may treat it like a house, providing little more than a short physical description of the item, along with where it thinks evidence may be found. The government, however, should not extend this analogy further than is necessary. It cannot remain vague on the specifics of what it's searching for, nor can it avail itself to the entire contents of the device without reason.

Nevertheless, much like a home, such devices can still appropriately be searched when there is probable cause to believe they contain particularized evidence. See McDermott, 448 Mass. at 770-772. However, given the properties that render an iPhone distinct from the closed containers regularly seen in the physical world, a search of its many files must be done with special care and satisfy a more narrow and demanding standard.

At issue here were the incriminating photographs, which the defendant sought to suppress. He argued the police only had probable cause to search his text messages and phone calls. The court disagrees.

Communications can come in many forms including photographic, which the defendant freely admits. So long as such evidence may reasonably be found in the file containing the defendant's photographs, that file may be searched.

[...]

Once the photographs in question were viewed, their evidentiary relevance linking the defendant (holding a gun and wearing a jacket similar to the one worn by the shooter) to the specific crimes under investigation was apparent.

"Your phone = your house" does the defendant no good here, primarily because warrants can be used to access both with little fear of constitutional violations. Even the comprehensive nature of the warrant falls within the confines of the Constitution, as the swearing officer had shown that evidence linking the suspect to the crime would likely be found on his phone.

The dissenting opinion, however, disagrees that the photographs entered as evidence were actually evidence of anything more than the suspect's ownership of a gun and a jacket.

I disagree with the court's resolution of the issues presented here. In my view, the search of the photograph files on the defendant's Apple iPhone "smart" cellular telephone was not supported by probable cause, and the warrant authorizing that search was not sufficiently particular. Furthermore, even had there been probable cause to support a search of the photograph files, the photographs seized by the police appear to have been outside the permissible scope of the warrant.

The photographs were supposedly "threats" sent to a recipient by text message. The dissent argues that applying the phone = house analogy may prevent warrantless searches, but it does very little to deter police from performing invasive searches of suspects' devices.

The court incorrectly holds, however, that there was probable cause to search the entire set of photograph files on the defendant's iPhone. In my view, there was not a substantial basis for concluding that the entire set of the defendant's photograph files, rather than just the subset of photograph files attached to the defendant's text and multimedia messages, was related to the criminal activity under investigation.

The dissent warns that the over-reliance on analogies will likely result in more abuse of non-specific warrants as devices carried by a majority of the population continue to hold more and more of their "private" lives.

In an increasingly digital world, we continue to lean heavily on analogies between digital media and physical spaces and objects, such as that between a computer and a closed container. In reality, however, searches of physical spaces for physical objects are akin to searches of digital media for digital information much in the way that "a ride on horseback" resembles "a flight to the moon."

While narrowing the scope of purely digital searches may be difficult, it is not impossible. The purpose of the court is not to make things easier for law enforcement, but rather demand more from them as the stakes rise. To call a phone a house may keep cops from accessing contents without a warrant, but it does little to prevent them from accessing everything once a warrant is in hand.

Here, the state sought to apply the "plain view" standard to its access of photos not attached to text messages -- positing that the incriminating pictures would inevitably have been seen by investigators during the execution of the search warrant. But, as the dissent points out, applying a warrant exception to a not-quite-fitting analogy only encourages law enforcement to pursue generalized searches that encompass the entire contents of suspects' smartphones, rather than limit themselves to where evidence is most likely to be found.

In Preventive Med. Assocs., supra at 832, this court elected to "leave for another day the question whether use of the plain view doctrine as a justification for admission of evidence should be precluded or at least narrowed in the context of searches for electronic records." While not today, the day when the court will be called upon to determine more precisely when and how the plain view exception applies to digital searches is likely close at hand.

The inevitable has been postponed. This court -- and many others around the country -- will have to tangle with this issue and decide for themselves whether they'd rather apply analogies or remedies. Only one will prevent digital devices from being treated with the disregard as the British treated colonists' homes during the execution of general warrants.

Cell-Phone-Warrant (PDF)Cell-Phone-Warrant (Text)

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Filed Under: 4th amendment, houses, mobile phones, privacy, warrants

22 Comments

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TKnarr (profile), 20 Jan 2016 @ 11:50pm

Photographs as evidence
The warrant did authorize the search of photos, and didn't restrict them to just those attached to text messages. As far as the photo showing the suspect with the gun and jacket, if you had a warrant to search someone's home and found a gun and that same jacket they'd certainly be admissible as evidence. They aren't conclusive proof that it was the suspect, but they're certainly evidence that he did in fact have the items needed to be the right person. The attempt here seems to be that not even a warrant is enough to search a smartphone, which I disagree with.

I'd be more interested in a point that's glossed over or ignored: the details of the evidence the police submitted in support of the warrant application pointing to it being the defendant who sent the text messages as opposed to someone else.
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Quiet Lurcker, 21 Jan 2016 @ 5:10am

>>The warrant did authorize the search of photos, and didn't restrict them to just those attached to text messages.

Your source, please. The opinion says exactly nit about "photographs", "photos", "images", or any of several other terms which could be interpreted to mean the same thing.
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AJ, 21 Jan 2016 @ 6:00am

If your a criminal without strong phone encryption, and a case of forgetfulness when it comes to your password, I suppose you would have to expect these types of issues.
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Anonymous Coward, 21 Jan 2016 @ 6:01am

Yeah, because a cell phone could be a gun. Remember that one?
Creative goons come up with some real doozies.
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AJ, 21 Jan 2016 @ 6:33am

Re:
I'm not sure about the original warrant. But the Judge said:

Communications can come in many forms including photographic, which the defendant freely admits. So long as such evidence may reasonably be found in the file containing the defendant's photographs, that file may be searched.

So that to me would mean, photo's would be considered communications, and if communications were included in the warrant, and I would have to believe they were, then the photo's would be covered by the warrant right?
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Mason Wheeler (profile), 21 Jan 2016 @ 6:55am

You're really starting to make your critics look right with a post like this. You keep writing up annoyed posts about how police who caught actual criminals without getting! warrant end up screwing up the court case because of it, and emphasizing how they need to get a warrant. You rail against warrantless searches of phones, and say they need to get a warrant. You mock cops who talk about the burden that getting a warrant places on them, saying how a warrant is a minimal hurdle to be cleared, and you say they need to get a warrant.

And now they got a warrant, and suddenly that's not good enough?

It's goalpost-rearranging posts like this that lead critics to believe that Techdirt actually has a broad, general anti-police, pro-criminal bias. Please don't give them more fuel for their arguments.
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AJ, 21 Jan 2016 @ 7:04am

Re:
I grabbed my torch and started to jump on the wagon with you on this... but then I re-read the story. I didn't get the "And now they got a warrant, and suddenly that's not good enough?" from the story at all, I got more of "Good that they are getting a warrant, now lets focus on getting the Warrants right".. but meh, I've already got my torch out...
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Anonymous Coward, 21 Jan 2016 @ 7:35am

Re:
A HN commenter once aptly described the goal of some Techdirt postings as acquiring "rageviews".
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Chris Rhodes (profile), 21 Jan 2016 @ 7:40am

Re:
What section of this article seemed "annoyed" to you? It seemed to me like a "this is an interesting court case that tests some boundaries" post, rather than a "railing against the cops" post.
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Anonymous Coward, 21 Jan 2016 @ 7:46am

I think the plain view standard makes sense. If you want to keep something important secure in your house, you put it in a lockbox or safe. You can do the same digitally by using encryption. Given that any digital file can be any type of data, there's really no practical way to narrow a search warrant on a digital medium.
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TKnarr (profile), 21 Jan 2016 @ 8:14am

Re:
Second quoted paragraph:

"Subscriber's name and telephone number, contact list, address book, calendar, date book entries, group list, speed dial list, phone configuration information and settings, incoming and outgoing draft sent, deleted text messages, saved, opened, unopened draft sent and deleted electronic mail messages, mobile instant message chat logs and contact information mobile Internet browser and saved and deleted photographs on an Apple iPhone, silver and black, green soft rubber case.
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Quiet Lurcker, 21 Jan 2016 @ 8:15am

Re: Re:
Respectfully disagree.

Assume a search warrant for a house. The warrant specifies 'chairs' (don't ask, just go with it here, please). The cops take a small table (Yes, yes, I know, I'm overlooking the plain sight doctrine.) and the defendant motions to have the table quashed; tables are not mentioned in the warrant. The motion is denied, because, in the reasoning of the judge, a table can be used for the same purpose as a chair, namely sitting down. With that line of thinking, particularity goes right out the window, I should think.

As to the plain sight doctrine, in this case, there is no merit in the argument. Downloading the photos in this instance is like cops being authorized to remove any filing cabinets, going into a closet (which may or may contain a filing cabinet), finding a photo album but no filing cabinet, and taking the photo album.
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Anonymous Coward, 21 Jan 2016 @ 8:47am

Re:
I took this post to be about the danger that "the over-reliance on analogies will likely result in more abuse of non-specific warrants". That's bugged me (and I assume plenty of others) for a long time, and now there's a case that brings out some of the fuzzy-area problems.

Analogies are great, but the law tries to be very concrete. "A phone is like a house" is a great beginning to an argument, but a law based on this idea can be lazily interpreted as saying that a phone is a house.

This kinda reminds me of a legal "Three mathematicians need a hotel room" problem: using casual language when discussing formal rules can lead to silly results.
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AJ, 21 Jan 2016 @ 9:18am

Re: Re: Re:
Your argument makes since. I don't disagree with it directly. But using your analogy if you don't mind; My understanding of what the Judge was saying is not that a table can be used as a chair, but that in fact a table actually IS a chair.

In this case, he's saying a Photo actually IS a "communication". That brings to mind the old "A picture is worth a thousand words" saying.

Again, I don't know if I agree, but that is what I am understanding from his writing.
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Whatever (profile), 21 Jan 2016 @ 9:48am

Re:
I agree with you on this one.

The warrant (based on the paragraph quoted) seems pretty darn complete. They seem to have included pretty much every type of data that could be on the phone outside of perhaps his game playing scores. Its pretty clear that it includes images (even deleted ones).

I just don't see the big deal here. The entire story sounds like "dumb criminal who took selfie with his gun and disguise caught in part because of the pictures". The guy is stupid enough to take the selfie, and equally dumb to try to get it thrown out of court against the clear language of the warrant.

You have to reach really, really far to find outrage against the police in this one.
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AJ, 21 Jan 2016 @ 10:24am

Re: Re:
That quote wasn't on the warrant. It was on the affidavit attached to the application for the warrant.
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TKnarr (profile), 21 Jan 2016 @ 11:07am

Re: Re: Re:
Last sentence of the first quoted paragraph:

"Walker received and executed a warrant to search the defendant's iPhone for the following:"

That seems to point to the second paragraph coming from the warrant, not the affadavit.
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AJ, 21 Jan 2016 @ 11:42am

Re: Re: Re: Re:
No, your right. The wording is a bit tricky to follow. I read the entire ruling and was able to follow it a bit easier... it was also a very interesting read.
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AJ, 21 Jan 2016 @ 11:57am

Re: Re:
"The warrant (based on the paragraph quoted) seems pretty darn complete. They seem to have included pretty much every type of data that could be on the phone outside of perhaps his game playing scores. Its pretty clear that it includes images (even deleted ones). "

Even the Judge said; "the warrant was awkwardly written, conflating at least in part the items to be searched"

"You have to reach really, really far to find outrage against the police in this one."

Please point me out the outrage? I've got my pitchfork and torch ready, but I just can't seem to find this "outrage" you speak of.

I did detect a bit of snark... are we still burning and forking over snark? meh....
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Whatever (profile), 21 Jan 2016 @ 4:26pm

Re: Re: Re:
I read the tone in the article as "the police went too far, the court messed up, and wow, this dissenting opinion is exactly on the spot and should be the law, bad cops!".

The dissenting opinion is actually pretty bad. The riding a horse / flight to the moon thing shows how hard that judge is working to try to create difference where none exists. If you have a whole house search warrant for drugs, but also happen to find a picture of the homeowner dressed like last week's bank robber, it's all good. The phone shouldn't be any different. In searching for messages, communication, and attached images (including those delete) it's inevitable that all images may be viewed as part of the process. It's in the same device.

What the judge (and Tim) seem to be pushing for is a sort of app by app, byte by byte warrant requirement that makes no more sense than a warrant for each individual sofa cushion, each drawer in the dresser, and each individual piece of paper in an inbox or pile of mail. That sort of thing would create an insane level of burden and would offer up an endless number of points of legal debate every time a device was searched.

A warrant to search a phone should be a simple thing: search the entire contents of the phone - with additional notes required to retrueve things like email held in accounts that are active on the device but which may be remotely or cloud stored. It shouldn't be any bigger a deal than saying "search the garage and anything inside of it".

The outrage is that perhaps the cops did something right, and in doing so have taken a solid step towards establishing a standard that Tim doesn't personally like.
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AJ, 22 Jan 2016 @ 3:45am

Re: Re: Re: Re:
I'm trying to follow what your saying, but I still don't understand. When the police get a search warrant to search a house, do they not have to put on the warrant exactly what they are looking for? Can they put "general incriminating photographs" as the target of the search? I'm no legal expert, but to me the Judge is saying; They can search the whole house (phone) if they want, but they have to be looking for something specific. The police were looking for photo's attached to txt messages, they were indeed looking for something specific. But when they applied for the warrant, they added a small grocery list of other things to the warrant. They didn't actually find a txt message with the offending pic attached, but because they had applied for this grocery list of things, they found something somewhere else. The dissenting opinion was stating that it's ok to search the entire phone, but you can't just submit a generalized grocery list of items your looking for, you still have to be specific. Am I understanding the Judge correctly? If so, I have to agree with him on that.

damn.. my torch just went out....anyone got a match?
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Anonymous Coward, 22 Jan 2016 @ 1:30pm

Re: Photographs as evidence
As far as the photo showing the suspect with the gun and jacket, if you had a warrant to search someone's home and found a gun and that same jacket they'd certainly be admissible as evidence.

Not if the warrant said you were searching for a person, and you went and opened a shoebox, and found the gun there. That would be suppressed, because why were you opening a shoebox to find a person? That is one reason why the warrant is supposed to particularly describe the things to be seized. It's not supposed to be a fishing expedition.
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