October 4, 2022 | By Jennifer Lynch | Electronic Frontier Foundation (EFF) |
This blog post was co-written with EFF Legal Intern Allie Schiele
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. State, the 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…
Continue reading the full article HERE.
