The question in the title of this post is one that I’ve been asked lots of times in different factual contexts. The basic question is, given that most people have cell phones, and that people tend to use their phones to document and to communicate about just about everything that they do, is it reasonable to believe that a person who has committed a crime has evidence of that crime on his or her phone?
I don’t see that as categorically reasonable. For example, I doubt that most shoplifters document their shoplifting on their phones, so absent some indication to the contrary, evidence that a person acting alone shoplifted an item doesn’t strike me as providing probable cause to search the person’s phone. But in many circumstances, there will be probable cause to search a suspect’s phone, whether with a warrant or pursuant to an exception to the warrant requirement. That’s particularly likely where a crime is committed by a group (because the coconspirators may have communicated with one another via text message), or involves a transaction (because the participants may have arranged the transaction using their phones).
Courts across the country don’t see eye to eye on this, with some wanting specific evidence of a nexus between the crime and the phone before finding probable cause, and others being willing to find probable cause based mainly on the type of offense at issue. Two recent cases illustrate the different approaches courts may take.
In United States v. Griffith, 867 F.3d 1265 (D.C. Cir. 2017), police obtained a warrant to search the defendant’s home for evidence of a gang-related homicide committed more than a year earlier. The officers were interested mainly in the defendant’s digital devices. The application stated that “gang . . . members involved in criminal activity maintain regular contact with each other . . . and share intelligence about their activities through cell phones and other electronic communication devices.” What they actually found was a firearm, which the defendant, as a convicted felon, could not lawfully possess. The defendant moved to suppress, arguing that there was no showing that he owned a cell phone, no showing that a cell phone would be in the residence, and no showing that any phone would contain pertinent evidence.
That argument didn’t persuade the trial court but it prevailed on appeal. First, the appellate court acknowledged that most Americans own cell phones, but said that there was no evidence that the defendant, who had recently been in jail for months on unrelated charges, did so. The court was “aware of no case . . . in which police obtained authorization to search a suspect’s home for a cell phone without any particularized information that he owned one.” Second, even if the defendant owned a phone, it would not necessarily be at the residence, especially if the defendant were not present. And third, the likelihood that the defendant’s phone would contain evidence of the murder was not high. Officers “might often fairly infer that a suspect’s phone contains evidence of recent criminal activity . . . perhaps especially when, as here, multiple perpetrators may have coordinated the crime.” But the shooting took place a year earlier, and the defendant might have changed phones in the interim. Even if not, he had “ample opportunity” and “every incentive” to delete incriminating evidence from his phone. Summing up, the court stated:
In view of the limited likelihood that any cell phone discovered in the apartment would contain incriminating evidence of [the defendant’s] suspected crime, the government’s argument in favor of probable cause essentially falls back on our accepting the following proposition: because nearly everyone now carries a cell phone, and because a phone frequently contains all sorts of information about the owner’s daily activities, a person’s suspected involvement in a crime ordinarily justifies searching her home for any cell phones, regardless of whether there is any indication that she in fact owns one. Finding the existence of probable cause in this case, therefore, would verge on authorizing a search of a person’s home almost anytime there is probable cause to suspect her of a crime. We cannot accept that proposition.
In contrast, consider State v. Moats, 168 A.3d 952 (Md. Ct. App. 2017). Officers determined that the defendant had provided drugs to friends and suspected that he participated in a sexual assault against one of the friends. An officer obtained a warrant to search the defendant’s cell phone. The affidavit stated in part that in the officer’s experience, “individuals who participate in such crimes communicate via cellular telephones, via text messages, calls, e-mails etc.” A search of the phone resulted in the discovery of child pornography, and the defendant moved to suppress, contending that there was an insufficient “nexus” between the suspected crimes and the phone. That argument was unsuccessful at trial and again on appeal:
Petitioner points out that the warrant affidavit was devoid of specific facts linking the crimes and the cell phone. That much is so, but such direct evidence has never been required by the Fourth Amendment. . . . The information [the officer] set forth in the warrant affidavit supports a reasonable inference that Petitioner’s cell phone contained evidence of his connection to the drug-related charges and sexual assault investigation. . . . [S]ome deference also is to be given to [the officer’s] knowledge gained through his training and experience that persons use cell phones to communicate and that evidence of the crimes being investigated, and any related crimes, would be found on Petitioner’s cell phone. . . . This was not an unreasonable inference to draw, considering not only the prevalence of cell phones but also the degree of detail of one’s daily life that is often contained in a cell phone. . . . The nature of the criminal activity of which Petitioner was suspected supported a common-sense conclusion that he might have incriminating evidence on his cell phone. . . . By its description, the crime of drug distribution involves at least two participants—the supplier and the consumer. . . . Other crimes that by definition do not require more than one perpetrator may nevertheless involve other individuals depending on the individual facts and circumstances of the crime. Any one of these examples could permit a reasonable inference that digital communications exist on the cell phones of any one of the participants. . . . It is likewise not unusual that persons committing a sexual assault, or an accomplice witnessing the crime, document the crime on their cell phones.
Folks interested in reading more about this issue can find some further discussion on pages 3-5 of my book Digital Evidence. It’s a pretty fundamental issue yet, as these cases illustrate, courts’ views of it vary widely.