Court: Unsupported Assertions And Broad Language Aren't Enough To Support Cell Phone Searches

from the this-isn't-a-box-of-papers-in-an-unused-outbuilding dept

Another court has stepped up to inform law enforcement that just because criminals are known to use cell phones doesn't mean any cell phone possessed by a suspect is fair game -- warrant or no warrant.

This time it's the Superior Court of Delaware making the point. In its suppression of evidence found on a seized cell phone, the Superior Court makes it clear that cell phones are used by everyone -- not just criminals. Not only that, but if an officer is going to seek a warrant that effectively allows them access to the owner's entire life, the warrant needs to contain more specifics and limitations than this one did.

During a consensual search of an apartment where a homicide suspect (Qualeel Westcott) was staying, police came across heroin and three mobile phones. All three of the phones were seized. A warrant was obtained to search the content of the phones. But a warrant alone isn't good enough. While a warrant is better than nothing at all, the warrant here -- according to the court -- barely exceeded "nothing at all."

While the court does recognize [PDF] there's a good likelihood that phones possessed by suspects will often contain useful evidence of criminal activity, it takes far more than the bare bones assertions made by the officer obtaining the warrant, which did almost nothing to establish a relationship between the phone and suspected criminal activity. (via

[H]owever, Detective Sergeant Horsman did not expressly state any nexus between Mr. Westcott's ownership of the mobile phone and the existence of evidence of the crimes (including a confession) on that mobile phone. Although the magistrate may draw reasonable inferences from the factual allegations of the affidavit, the leap required here is a long one. The mere fact that a defendant owns a mobile phone is not, in and of itself, sufficient to warrant an inference that evidence of any crime he or she commits may be found on that mobile phone. The affidavit did not provide probable cause for a search.

The court goes on to point out that even if Sergeant Horsman had managed to do a better job establishing a nexus, the warrant would still fail because of how broadly written it was. State law, along with judicial precedent, have set the bar higher for warrants seeking information stored in citizens' cell phones. As the Supreme Court pointed out in its Riley decision, phones are not simply "containers" that can be rifled through with a minimum of particularity. They are people's "entire lives." With that in mind, the warrant sought in this case is an abject failure.

Here, the search warrant authorizes a search of all "data and cellular logs." This description does not limit the scope of the officer's search of the mobile phones to relevant material and does not place any limitation on the types of "data, media, and files" to be searched.

There is also no temporal limitation on the search. The police alleged that the shooting occurred on May 11 and the presence of heroin at the apartment provided probable cause for its recent distribution. The police should have sought a more limited search warrant permitting the search of suitably recent data from the phones.

Instead, the application sought a general search "of the three phones." The warrant thus provides broad permission to rummage through the entire digital lives of the phones' owners. Accordingly, it does not contain the level of particularity required under the Constitution of the United States, the Delaware Constitution, or Delaware statute.

Yes, it's true that criminals use cell phones. That makes them indistinguishable from a majority of the United States' population. But the wealth of information stored in the average cell phone makes them far different than a filing cabinet or a cardboard box full of personal papers. Courts are doing a (slightly) better job at demanding more from law enforcement officers when they seek to access these contents. The first part of it is to establish something more than "criminals use cell phones" when seeking a warrant. The second part is even more important: limiting the search to just what's needed to uncover evidence related to the criminal act. Particularity is a must. Without it, a cell phone search warrant is nothing more than a boilerplate-backed Law Enforcement Fishing Expedition (Short Form).

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  1. icon
    discordian_eris (profile), 16 Feb 2017 @ 3:52pm


    At the rate the courts are moving, we'll have truly meaningful action by 2030. Maybe.

    reply to this | link to this | view in thread ]

  2. icon
    Anonymous Anonymous Coward (profile), 16 Feb 2017 @ 4:07pm


    Even with particularity specified in the warrant application, what stops the searchers from looking at EVERYTHING on the phone? They may be limited in using what they find on the phone in court, to that which the warrant authorizes, but other private information is also exposed. There needs to be a lot more thought about searching computers/phones/tablets/etc..

    reply to this | link to this | view in thread ]

  3. identicon
    pegr, 16 Feb 2017 @ 5:24pm

    Re: Particularity

    A proper search of a device requires adherence to strict evidence-handling procedures. A chain-of-evidence must be maintained.

    But they don't want evidence. They want information. Parallel Construction can make it evidence later.

    But any criminal worth his weight uses a burner phone anyway.

    reply to this | link to this | view in thread ]

  4. icon
    Anonymous Anonymous Coward (profile), 16 Feb 2017 @ 5:33pm

    Re: Re: Particularity

    Many people caught up in these situations are not only not criminals, hard core or otherwise, but have things they may not want shared (perfectly legal bedroom photos with their legal significant other).

    So far as that strict evidence-handling procedures, how would someone prove they didn't look at everything on the phone? Yeah, I know, hard to prove a negative, but there is the nature of privacy to consider. At least for the 'suspect', who is not guilty until proven so by a court of law. Regardless of ideology, privacy must be considered within the law, when they are made, and when they are applied.

    reply to this | link to this | view in thread ]

  5. icon
    AEIO_ (profile), 16 Feb 2017 @ 5:52pm

    Re: Re: Particularity

    "But they don't want evidence. They want information."

    We want information… information… information.
    Number Six: You won't get it.
    Number Two: By hook or by crook, we will.

    reply to this | link to this | view in thread ]

  6. icon
    That One Guy (profile), 16 Feb 2017 @ 5:53pm

    Nonsense ruling

    The warrant was clearly very specific, it only covered everything on three phones, rather than everything on every phone.

    Really, some people, judges included apparently, will nitpick on the most insane points in their attempts to stop the paragons of justice from doing their jobs...

    reply to this | link to this | view in thread ]

  7. identicon
    Agammamon, 16 Feb 2017 @ 9:57pm

    "But the wealth of information stored in the average cell phone makes them far different than a filing cabinet or a cardboard box full of personal papers."

    No, no it doesn't. And pushing this idea - all it does is make people think that filing cabinets and boxes of personal papers are not worth the same level of protection as phones.

    Particularity is something that should be required for *all* searches - not just for 'special' containers.

    You need a warrant to look at my stuff - limited in scope and containing the specifics of where and when you're going to search, what you're searching for, and the list of facts that lead you to a reasonable belief that evidence of a crime will be found if allowed to search - no matter where or how its stored.

    reply to this | link to this | view in thread ]

  8. identicon
    Agammamon, 16 Feb 2017 @ 10:00pm

    Re: Particularity

    *If* the judges stopped with this 'reasonable error' deference bullshit and threw out evidence obtained illegally - then, short parallel construction - they would have to show where they obtained the evidence and if it was obtained improperly, it would be excluded from use.

    But judges, for some reason, seem to think prosecutors and cops have a hard job and need all the help they can get.

    reply to this | link to this | view in thread ]

  9. identicon
    Cowardly Lion, 16 Feb 2017 @ 11:34pm

    Cabinets and such:

    Whoa there Spartacus. I think the reference to cabinets was merely to illustrate a point and not to devalue them. I can't find any instance in the narrative where anyone's saying that warrants shouldn't be exacting. And specific.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 17 Feb 2017 @ 10:28am

    Time till this sensible ruling is overturned....3....2....1

    Prothetic 'joking' aside

    Good decision, more like this please, globally

    reply to this | link to this | view in thread ]

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