Court: Riley’s ‘Get A Warrant’ Cell Phone Search Requirement Means Get A *Good* Warrant
In 2015, the Supreme Court finally addressed reality: people were carrying around computers in their pockets capable of accessing, storing, and maintaining far more information than could be expected to be found in their physical houses.
The government sought to compare cell phones to pocket contents or whatever might be found in the trunk of a car during a roadside search. The Supreme Court shut this argument down, pointing to the ubiquity of cell phone use en route to erecting a warrant requirement for cell phone searches.
While there are exceptions, the rule holds true: if cops want to search a cell phone, they need a warrant. But, as the Supreme Court of Georgia points out, not just any warrant will do. The warrant requirement also says specifics are needed. The Fourth Amendment forbids “general warrants,” the sort of thing oft abused by our former landlords, the British government.
And that’s reiterated here, in a decision [PDF] brought to us by FourthAmendment.com. Seeking a warrant? Good. Ignoring the relevant facts and copy-pasting a bunch of boilerplate to obtain this warrant? Well, that’s bad.
Defendant Roceam Wilson was arrested following the killing of Bradly Jordan, a pest control worker. After a brief investigation, officers determined a “black male” driving a teal green “Ford Aerostar van” was the best suspect. After consulting some ALPR (automated license plate reader) data, the cops decided Wilson and his van fit the description. A traffic stop was conducted, Wilson was arrested, and his van was impounded. A warrant was obtained to search the van, which resulted in the seizure of two cell phones.
That’s where the problems begin. An investigator applied for a warrant to perform forensic searches of the recovered phones. The warrant application contained a mix of relevant facts and boilerplate. It also included the assertion that investigators sought to access pretty much everything on the phones under the theory that any and everything recovered would be “evidence” of the alleged crime.
The trial court, after a challenge by Wilson, examined the warrant applications and found that they did not have enough particularity to be valid and ruled the evidence obtained from the phones should be suppressed. The state appealed.
Too bad, says the Georgia Supreme Court. These warrants were “general” in the worst and historical sense of the word. Nothing limited the search and investigators’ speculation that searching everything would result in finding evidence linking Wilson to the crime is exactly the sort of the thing the Fourth Amendment prohibits. Of all things, the state decided the boilerplate copypasta would relocate the warrant to its new home in Constitutional Land. The court disagrees.
As the State acknowledges, the search warrant broadly authorizes the seizure of “any and all stored electronic information” on the phones, “including but not limited to” various kinds of electronic information. The State points to the preprinted form language following this sweeping authorization as “limiting” in nature. However, that language clearly states that “[t]he foregoing described property”—that is, “any and all stored electronic information” on the phones—“constitutes evidence connected with the crimes.” This language cannot plausibly be read, as the State suggests, to limit the otherwise limitless authorization to search for and seize any and all data that can be found on Wilson’s cell phones.
The court also denies the state’s “good faith” request. Good faith means relying on a facially-valid search warrant. This ain’t it. The suppression order is granted.
One of the concurrences (there are three of them, all dealing with separate legal issues) references the US Supreme Court’s Riley decision to reiterate that the warrant requirement means obtaining a valid warrant supported by particularity, rather than just any warrant authorizing whatever.
Riley’s “get a warrant” holding was more or less a mic drop, and the Court has yet to return for an encore. But in the meantime, people haven’t stopped using cell phones or committing crimes (would that it were so!). And cell-phone technology keeps advancing, adding both to the value of cell phones for law enforcement seeking to combat crime, and to the privacy consequences the Court worried about. The Court may say more someday about just how the Fourth Amendment applies to and limits warrants for cell-phone data, but until then, our courts must grapple with these questions, in light of Riley, ourselves.
Today’s decision is a start. The Court holds that a warrant to search and seize “any and all” data stored on a cell phone, not even limited to evidence of the crime at issue, with no specificity about how any of the data could be used, violates the Fourth Amendment’s particularity requirement.
There was no particularity here. The boilerplate (despite the checklist) basically allowed investigators to acquire “any and all” information found on the phone. The concurrence compares this to searches of physical places and explains why cell phone search warrants without limits or guardrails are an obvious Fourth Amendment violation.
Our rejection of that basis for demonstrating particularity is rooted in the unique nature of modern cell phones, including their “immense” capacity to store information of all kinds—analogous to cramming the entirety of one’s life into a small slab of plastic, metal, glass, and silicon. When we view cell phones through that lens, the closest analogy I can come up with is a warrant to search a house and seize “any and all atoms of matter stored within, including but not limited to matter in solid, liquid, and gaseous states.” I suppose an officer would know what to search for and seize based on that description, too. But both that hypothetical warrant and its digital equivalent here authorize a forbidden general search, and our decision today rightly concludes as much.
Then there’s the problem with assuming the cell phones would contain evidence of this particular crime. The concurrence says this is a step too far as well.
[i]t is not so easy to square that permissive view of probable cause for cell-phone search warrants with Riley. First return to the cell-phones-as-houses analogy: An officer might also reasonably say that in her experience, criminals often store evidence of their crimes—cash, weapons, drug paraphernalia, and more—where they live. Yet “[p]robable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home.”
[…]
Sure, cell phones are not in fact houses, so the analysis might differ in some particulars. But after Riley, it is not clear why cell phones would not be treated in similar fashion. If not—if this generic “criminals use cell phones, too” logic is enough for probable cause to get a warrant to search a suspect’s cell phone—it is hard to imagine a case in which police cannot get that warrant.
That’s part of the problem, too. Cops assume these vast repositories of data and communications always host evidence of criminal activity, seemingly just because criminals are also known to use cell phones. That’s deliberately stunted thinking designed to allow cops to perform expansive searches of any electronics owned by or found on criminal suspects. This rejection of that line of thinking recalls one of the most intellectually honest appraisals of cop thinking delivered by a court, one written by Chief Justice Brian Quinn of Texas Court of Appeals:
A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, or looking at a peace officer, or looking away from a peace officer, or a young person driving a newer vehicle, or someone driving in a car with meal wrappers, or someone driving carefully, or driving on an interstate, most anything can be considered as indicia of drug trafficking to law enforcement personnel.
Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W.3d at 896 (observing that “[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. Some have nice cars, some do not. Some eat spaghetti, some do not. And, sometimes, some even engage in innocent activity.”).
That’s the reality cops want. Fortunately, the Georgia Supreme Court isn’t interested in allowing baseless speculation and overly-broad warrants to determine the contours of phone searches. The Riley decision said “get a warrant.” The unspoken message — vocalized here by the court and four concurrences — is loud and clear in Georgia: get a good warrant.