Law enforcement officers often seek search warrants for suspects’ cell phones. When they do, judicial officials must determine what sort of evidence is needed to support the issuance of a warrant. Many people have their phones with them at all times, and use their phones to document and discuss every aspect of their daily activities. Does that mean that when an officer has probable cause to believe that a suspect committed a crime, the officer automatically has probable cause to search the suspect’s cell phone for evidence of the crime? Or does the officer need a more specific nexus between the crime and the phone?
Massachusetts says a more specific nexus is needed. The Supreme Judicial Court of Massachusetts confronted this issue last week in Com. v. White, __ N.E.3d __ , 2015 WL 12601029 (Sept. 28, 2016). (Note: given the date of the decision, it seems like the Westlaw cite should begin with 2016 rather than 2015, but it doesn’t.) The case hits the issue on the head clearly enough that I thought it was worth sharing. It also prompted me to collect some other authorities, which I have included below.
White arose after two men robbed a convenience store and shot and killed a person who was in the store. The investigation focused on the defendant, a high school student. An officer went to the school and learned that the defendant was there, but that his cell phone had been confiscated by school officials as a consequence of his tardy arrival. The officer seized the phone from the officials. Two months later, the officer obtained a warrant and searched the phone.
The state supreme court ruled that the seizure was improper because it was not supported by probable cause. Here’s the heart of the court’s opinion, with some citations and quotation marks removed for readability:
[P]rior to seizing the defendant’s cellular telephone, police had received information that the robbery and homicide under investigation had been committed by several people, that the defendant likely was one of those people, and that he owned a cellular telephone. They also knew from experience that coventurers often use cellular telephones to communicate with each other, and that these devices may contain evidence of such communications. According to their own statements, however, the detectives here did not have any “information that [a] cell phone was used in the crime under investigation,” nor did they claim that there existed a particular piece of evidence likely to be found on such a device. . . .
This, without more, does not satisfy the nexus requirement. Information establishing that a person [may be] guilty of a crime does not necessarily constitute probable cause to search or seize the person’s cellular telephone, even where the police believe, based on their training and experience in similar cases, that the device is likely to contain relevant evidence . . . Rather, even where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of particularized evidence likely to be found there.
The Commonwealth argues, however, that . . . if the defendant planned and committed multiple crimes with two coventurers, it was likely he did so, at least in part, using his cellular telephone, and that evidence of these communications would be found on the device.
It may well be the case that “many of [those] … who own a cell phone [in effect] keep on their person a digital record of nearly every aspect of their lives,” including, presumably, communications with their coventurers. See Riley v. California, [__ U.S. __, 134 S.Ct. 2473] (2014). Nonetheless, the Commonwealth’s argument is unavailing. While probable cause may be based in part on police expertise or on the practical considerations of everyday life, such considerations do not, alone, furnish the requisite nexus between the criminal activity and the places to be searched or seized. . . .
In essence, the Commonwealth is suggesting that there exists a nexus between a suspect’s criminal acts and his or her cellular telephone whenever there is probable cause that the suspect was involved in an offense, accompanied by an officer’s averment that, given the type of crime under investigation, the device likely would contain evidence. If this were sufficient, however, it would be a rare case where probable cause to charge someone with a crime would not open the person’s cellular telephone to seizure and subsequent search. We cannot accept such a result . . . The detectives here lacked any information establishing the existence of evidence likely to be found on the defendant’s cellular telephone. We conclude, accordingly, that they lacked the nexus required for probable cause to seize that device.
The general principle seems right. Several other courts have ruled, in effect, that the mere fact that a suspect owns a cell phone doesn’t provide probable cause to search the phone. See United States v. Ramirez, __ F.Supp.3d __, 2016 WL 1441805 (W.D. Ky. Apr. 12, 2016) (ruling that an affidavit failed to establish a nexus between a defendant’s cell phone and a drug conspiracy even though the officer knew “through training and field experience that individuals may keep text messages or other electronic information stored in their cell phones which may relate them to the crime and/or co-defendants/victim[s]”; the court stated in part that “[p]ossessing a cell phone during one’s arrest for a drug-related conspiracy is insufficient by itself to establish a nexus between the cell phone and any alleged drug activity”); In re Search of a White Apple iPhone, Model A1332, 2012 WL 2945996 (S.D. Tex. April 11, 2012) (unpublished) (an officer was investigating a sex offender’s alleged failure to register; the officer sought a search warrant for the suspect’s iPhone; a federal magistrate judge denied the application, finding that it failed to explain why “it is reasonable to believe that a search of the cell phone will provide any evidence of a [registration] violation. Without such a nexus, there is no probable cause for a search of the targeted cell phone. Indeed, this warrant application seems more designed to seek evidence that the defendant may have violated statutes regarding child pornography.”).
But reasonable minds differ about how strong the nexus must be. Professor Orin Kerr is critical of White in this post at the Volokh Conspiracy, where he argues that, given the intensity with which teens use their phones to share information, “the odds are pretty good that a teenager who committed a robbery with . . . other people and who then confessed about the crime to [a family member] would have some evidence of the crime somewhere on the phone shortly after the crime occurred.” And other courts have required rather modest evidence that a phone was connected to a crime before allowing the phone to be searched. For example, in Johnson v. State, 472 S.W.3d 486 (Ark. 2015), the court found a sufficient nexus between a suspect’s cell phone and a homicide despite a lack of specific evidence that the phone was connected to the crime. The court noted that (1) the suspect was in possession of the phone on the day of the shooting; (2) the perpetrator was “working with at least one other person when the homicide was committed”; and (3) a confidential informant had relayed information about the defendant’s involvement in the homicide on the day it was committed. It viewed these factors as suggesting that the phone had been used to communicate with others regarding the shooting.
Factors that may be pertinent when deciding whether probable cause exists to search a cell phone include:
- Whether the suspect is thought to have acted alone or with others. A suspect who acts with others may communicate with his or her compatriots using a cell phone. See Johnson, supra.
- The nature of the offense. Some crimes, such as drug distribution, may be more likely to involve cell phone communication than other offenses, such as assaults. See generally United States v. Barron-Soto, 820 F.3d 409 (11th Cir. 2016) (determining that a search warrant for defendants’ cell phones was properly issued where an officer “stated in his affidavit that, in his experience as a law enforcement officer, drug traffickers often use cell phones to coordinate drug deals and cell phones are often a source of valuable evidence”).
- Whether witnesses reported that the suspect possessed or used his or her cell phone in connection with the offense. United States v. Somers, 591 F. App’x 753 (11th Cir. 2014) (unpublished) (ruling, in an unlawful gun possession case, that a search warrant was properly issued where “[t]he evidence . . . showed that [defendant] had contacted a woman on his phone while she had a restraining order against him . . . and [stated that he] was in possession of a sawed-off shotgun”).
- Whether the suspect has admitted using his or her cell phone in a way that is pertinent to the investigation. See State v. Holland, 865 N.W.2d 666 (Minn. 2015) (ruling that a search warrant affidavit established a sufficient nexus between a defendant’s cell phone and iPad and the homicide under investigation because the affidavit indicated that the defendant had “admitted to searching the phrase ‘can you break your neck falling down the stairs’ on” the devices; searching the devices may have confirmed or denied the defendant’s innocent explanation for this suspicious research).
Other factors might be relevant, too, including the suspect’s phone usage habits, if known; the length of time between the crime and the planned search; and the functions and capacities of the phone in question. As always, I’d be interested in others’ thoughts about search warrant applications of this kind and how to evaluate them.