DC Judge Smacks Down Government For Vague iPhone Search Warrant

from the 'with-a-computer'-doesn't-really-specify-a-search-method dept

Trying to pin down DC Magistrate Judge John Facciola is tricky. Early in March, he issued an order denying a government warrant for an email search, stating the following:

[T]he government continues to submit overly broad warrants and makes no effort to balance the law enforcement interests against the obvious expectation of privacy e-mail account holders have in their communications.

So far, so good, as far as upholding the Fourth Amendment goes. Then later in the month, Facciola appeared to switch sides, rejecting a warrant application for a cell phone search because, as he saw it, there was no need for the police to obtain one. This determination was based on the warrant application’s description of the phone as being “abandoned” by the suspect, when in all reality, it may have just been dropped inadvertently. This strange order put the police in the strange position of being forbidden to obtain a warrant, something that could potentially jeopardize the prosecution’s case if another judge later determines a warrant was, in fact, needed before performing the search of the phone.

That backwards step has now been followed by another step forward in terms of the Fourth Amendment. Facciola has again smacked down a government warrant request for being too broad and too unconcerned with potential privacy implications.

Although Attachment B provides a sufficiently particularized list of the data that the government will search for and seize, the Forensic Analysis section fails to provide this Court with the same level of detail as to the methodologies to be used to conduct the search. Specifically, the government fails to articulate how it will limit the possibility that data outside the scope of the warrant will be searched. For the reasons stated below, the government’s Application for a search and seizure warrant will, therefore, be denied.

Specifically, Facciola finds this warrant approved from others he has blocked in the past, but the government still seems hesitant to explain exactly how it plans to limit its search to just pertinent data and documents.

The Court also requires a search protocol for a separate Fourth Amendment reason—to particularly describe the place to be searched. In a broad manner, describing the iPhone and its specific IMEI number certainly describes the “place to be searched” in a particular manner. But an electronic search is not that simple. An iPhone 4 has either 16 GB or 32 GB of flash memory, 10 which could allow storage of up to around two million text documents. Obviously no one—especially not a college student—would fill an iPhone with text documents, but it is inconceivable that the government would go file by file to determine whether each one is within the scope of the warrant. Instead, as the government has explained in extremely general terms, it will use some sort of “computer-assisted scans” to determine where to look because those scans will determine which parts will be exposed “to human inspection in order to determine whether it is evidence described by the warrant.”

Facciola notes that the fact that so much can be stored similarly increases the chance of abuse. All he’s asking for is for the government to be more specific in its description of how it will minimize accessing data not related to the case at hand, and all the government has provided so far is vagaries like “computer-assisted scan” and “keyword searches.”

It tells the Court nothing about what will actually happen and does not provide a means of searching so that this Court is assured that it is the type of particularized search that the Fourth Amendment demands. What the government has submitted is no better than the vague explanation in In re Search of Odys Loox that it will “image each device, search them, and keep all files.”

If Facciola sounds irritable, it’s probably because this is the third time he’s sent the government back to work on this particular warrant request. And this is the third time he’s had to make this statement, one which still seems to elude the agency making the request.

Until the government actually explains how the search will proceed, and thus how the government intends to limit its search of data outside the scope of the warrant, this warrant cannot be issued.

So, it appears Facciola’s fighting for citizens’ Fourth Amendment rights against a government that seems unwilling or unable to narrow the scope of its electronic searches. Of course, this protection seemingly only extends to citizens whose phones have been properly seized as evidence, rather than dropped/abandoned and claimed by pursuing law enforcement agents. If it’s the latter, Facciola appears to believe it’s an imposition on law enforcement to demand a warrant. Still, two out of three (in just this month alone) is a pretty good batting average for Americans’ rights, something that tends to be subverted very easily by expansive judicial readings of the Third Party Doctrine.

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Comments on “DC Judge Smacks Down Government For Vague iPhone Search Warrant”

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Anonymous Coward says:

Also it is possible that we may be misinterpreting Facciola’s intent in the case of the “abandoned” device.
It is possible that he is aware that law enforcement is likely to make such claims and in refusing to issue a warrant in such a case is ensuring that if the claim that it was “abandoned” rather than dropped, mislaid, or whatever, is, shall we say misleading, then the subsequent warantless search conducted will be useless in any proceedings.
In consequence, therefore, reducing agencies reliance both on such claims and on such searches.

Anon says:

Whaaat? No, a smart judge!

What’s the author’s problem. This is quite simple.

Abandoned property is fair game. Last I heard, I can dig through your trash on the curb (in true tabloid reporter fashion) and cannot be charged with theft because you abandoned it. Similarly, if you toss your cell in the trash for whatever reason (fear you are being tailed?) you abandon it. Whoever finds it has full rights to it.

I reality, I suspect the judge is having fun with his ruling, consisent with prior orders. The investigators claim the phone was abandoned. Alright, says the judge, then it’s fair game. No warrant. However, reading between the lines, the implication is that the investigators will then have to back up in court the contention it is “abandoned” – i.e. was the phone physically obtained in a legal manner? He’s making the point they did not ask him before taking physical possession with it, they’re stuck with the legal implications of their claim. The police cannot have it both ways.

The other order – duh! Smart judge, again. What’s the point of a warrant looking for specific items, if essentially they can end up finding anything they want and use the “found in plain sight” claim? Unless you specify how you will ensure your search does not do the legal equivalent of rifling the filing cabinet papers looking for stolen TV’s – “your honor, our search for evidence of last year’s kiddie porn trading happened to find his photos of his grow op taken yesterday.” Wihout proper limitations, every phone search is a fishing expedition.

This is a smart judge fighting a rising tide of government intrusiveness. To bad you don’t see that.

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