I’ve had the same question several times recently: can a magistrate issue a search warrant for a computer or a cell phone? The answer is yes. This post explains why that’s so, and why there’s some confusion about the issue.
A magistrate may issue such a search warrant. Magistrates may issue search warrants for digital devices because they are given the authority to issue search warrants by G.S. 15A-243 and G.S. 7A-273, and because there is no limitation on that general grant of authority that would prevent them from issuing search warrants for computers, cell phones, and the like.
Why the confusion? There are at least two reasons that there is some uncertainty about this issue. The first is that, as a matter of practice or agency policy, some officers may prefer to seek search warrants for digital devices from judges. Because such warrants involve some special legal issues, this is a perfectly reasonable approach, but it isn’t legally required. (The legal issues surrounding search warrants for digital devices are discussed in detail in my book on digital evidence.)
The second source of confusion is the fact that magistrates can’t issue search warrants for cell phone records or other information covered by the federal Stored Communications Act, 18 U.S.C. § 2701 et seq. That federal statute generally prohibits telecommunications service providers from disclosing information about subscribers to law enforcement agencies. However, it creates several exceptions to that general rule, making different types of information available to law enforcement with different types of legal process. A search warrant is one type of legal process that can be used to obtain information under the Stored Communications Act, but the Act specifies that only a warrant issued by a “court of competent jurisdiction” is effective. And it defines “court of competent jurisdiction” in a way that excludes magistrates and maybe district court judges, which is why I have written before that it is safest to obtain search warrants directed at service providers from superior court judges.
But the point to remember is that the “court of competent jurisdiction” business only applies to search warrants pursuant to the Stored Communications Act directed at telecommunications service providers. It doesn’t apply to search warrants for digital devices themselves. Again, those may be issued by any judicial official authorized to issue search warrants generally.
I hope that this addresses this recurrent question. If it doesn’t, or if related questions remain, please let me know.
In regards to the federal Stored Communications Act, the NC Court of Appeals and some federal courts have ruled that violating the federal Stored Communications Act does not provide for a suppression remedy (State v Stitt North Carolina NO. COA09-90). If a police officer had sufficient probable cause to obtain a search warrant to obtain cell phone records and a magistrate signed it, I don’t believe suppression could be a remedy regardless of an argument made by the defense. The Act does provide for civil penalties and possible criminal penalties, but the law states, “conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.” A police officer unaware of the highly technical analysis and definition of a “court of competent jurisdiction” could not possible be considered a knowing and or intentional violation of the statute especially in cases where probable cause is not disputed. There is also a clear good faith exception in the statute applied to the ability to recover civil damages.
I would further argue that it is still debatable as to whether a magistrate is prohibited from issuing a search warrant for cell phone records in regards to the federal Stored Communication Act. The federal statute states, “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.” I cannot find any case law that has interpreted this specifically and I think the reason is because you can’t receive suppression as a remedy. The civil case would be moot because of the good faith and lack of controlling authority excluding state magistrates. I would argue that North Carolina General Statute 7A-270 states, “General Jurisdiction for the trial of criminal actions is vested in the superior and district court divisions of the General Court of Justice.” North Carolina General Statute 15A-101(5) defines a judicial official as, “a magistrate, clerk, judge, or justice of the General Court of Justice.” Magistrates also have limited power of general criminal jurisdiction under 7A-273 to accept criminal pleas and enter judgments for certain infractions and misdemeanors.
I concede that there are federal court decisions that have ruled that the language requiring “general criminal jurisdiction” is designed to prevent judicial officials with limited legal training from approving complicated communication orders like wire taps, but I don’t see how this legislative intent applies to a situation where a neutral and detached magistrate finds sufficient probable cause to authorize a search warrant for cell phone records. I can understand a ruling that prohibits magistrates from issuing SCA orders for cell phone records when there is less than probable cause, but a search warrant supported by probable cause issued by a magistrate should be consistent with the legislative intent of the federal Stored Communication Act. Exactly what kind of special legal training is needed to determine whether there is probable cause to believe that evidence of a crime is located within someone’s cell phone records? No more than is needed for a magistrate to authorize the police to take blood from your veins, DNA from your mouth, or search your entire home.