Delays in Obtaining Search Warrants for Digital Devices

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There have been several recent cases regarding delays in obtaining search warrants for digital devices that have been lawfully seized. For example, in United States v. Pratt, 915 F.3d 266 (4th Cir. 2019), officers seized a suspect’s phone based on the suspect’s admission that it contained nude pictures of an underage girl. The opinion doesn’t say, but I assume that the basis of the seizure was risk of destruction of evidence. However, the officers didn’t obtain a search warrant for the phone for 31 days. On appeal, the Fourth Circuit ruled that the delay was unreasonable in violation of the Fourth Amendment. It turns out that Pratt isn’t alone.

This issue is not unique to digital devices. For example, in United State v. Dass, 849 F.2d 414 (9th Cir. 1988), the court ruled that delays of between seven and 21 days in obtaining search warrants for mailed packages on which drug dogs had alerted was unreasonable because law enforcement had not been diligent in seeking the warrants. However, for whatever reason, there seem to be many more cases regarding delays in obtaining warrants for digital devices than there are regarding other types of evidence.

The seminal case regarding digital devices. By far the most-cited case in this area of law is United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009), a child pornography case in which officers seized the defendant’s hard drive after the defendant admitted during a knock and talk that it contained contraband. Shortly after the seizure, the responsible officer went to a two-week training course out of state. A few days after his return, a total of 21 days after the seizure, the officer obtained a search warrant for the hard drive. The Eleventh Circuit eventually ruled that the delay was unreasonable. Because “[c]omputers are relied upon heavily for personal and business use,” the seizure interfered with a substantial possessory interest. By contrast, the government could point to little justification for the delay – while the officer did go to a training class, the case-specific portion of the warrant application was quite short, and if the officer truly was unable to complete it before he left, he could have passed the case to another officer.

Other recent cases. I’m not aware of a North Carolina case that is closely on point. But similar cases are cropping up in courts across the country. For example, in State v. Rosenbaum, 826 S.E.2d 18 (Ga. 2019), police suspected that a husband and wife had killed their foster child. Officers stopped the suspects’ vehicle, and during a subsequent impoundment/inventory search, took possession of a computer and an iPad. Officers also seized the suspects’ phones when they were transported to jail. More than 500 days later, the state obtained a search warrant for the devices. The defendants moved to suppress any results based on the delay. The trial judge and the state supreme court agreed, citing Mitchell and finding little justification for such an extended delay.

By contrast, in United States v. Fulton, 914 F.3d 390 (5th Cir. 2019), police obtained a search warrant for a house as part of a drug investigation. They seized the defendant’s cell phone during the search. Nine days later, they obtained a second warrant allowing a search of the phone. The search revealed evidence of other crimes, and the defendant moved to suppress based on the delay in seeking the warrant. On appeal, the Fifth Circuit ruled that the delay was reasonable and the motion was therefore properly denied. The court noted that the length of time showed “some attentiveness but not zeal by police,” and observed that the defendant “did not promptly assert his interest in retrieving the phone.” See also Com. v. Arthur, 112 N.E.3d 1189 (Mass. Ct. App. 2018) (holding that an 85-day delay in seeking warrant to search phones in connection with a multi-suspect shooting was not unreasonable where the phones were seized under a warrant and were themselves “evidence of the crime independent of their content,” because they showed how the shooting was planned and coordinated, meaning that the phones would be in the state’s custody until trial in any event).

Factors courts consider. When deciding whether a particular delay is reasonable or not, courts may consider a wide range of facts and circumstances. Among those appearing in the case law are the following:

  • Whether the initial seizure was with a warrant or was warrantless
  • Whether the physical devices themselves are evidence that may be retained until trial even if their contents are never examined
  • Whether the devices’ owners have expressed a desire to have the devices returned
  • Whether the devices contain information that is important to the owners’ lives and businesses
  • Whether it is feasible to make a copy of the contents available to the devices’ owners
  • The length of the delay
  • The reason for the delay

Although it’s hard to predict how these factors will come together in any particular case, at a minimum, officers may wish to work especially quickly on warrant applications for devices that have been seized without a warrant, particularly when the devices’ owners want the devices back.

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