By: Samuel J. Beckerman
The United States Supreme Court decided in the case of Riley v. California, that the warrantless search of the digital contents of a cellphone violates the 4th Amendment, even if the search is incident to arrest, court have continued to push for privacy protections of cell phones. Following this trend, a few months ago the Supreme Court of Colorado decided the case of People v. Herrera. There the court decided that even with a valid search warrant, law enforcement officers were not permitted to open a digital folder that was no likely to contain the evidence which the warrant described. While modern technology can present problems with the well-established particularity requirement of search warrants, this case presents a great example of a court applying traditional 4th amendment law in the digital search context.
The case is about a young girl who reported to police that the defendant had been text messaging her in order to facilitate sexual interactions. After a successful sting operation, the police were able to arrest the defendant and retrieved his cell phone. Because of the restriction on searching the phone incident to this arrest after Riley, the police were able to seize the phone as evidence, but were not yet able to search it. When the police finally did get a warrant to search the phone, the warrant only authorized them to look for evidence that the cell phone belonged to the defendant and evidence pertaining to illicit messages and photographs sent by him during the aforementioned sting operation (during which he believed he was communicating with another young girl who was actually a police officer).
The particularity requirement of search warrant requires law enforcement officers applying for a search warrant to describe, with as much detail as possible, the evidence they hope to, and expect to, find when executing that warrant. When the police searched the phone, they found a messaging app, which organized messages by the name of the recipient. Despite applying for a warrant to search only for the messages pertaining to the sting operation, the police found messages under the name of the original victim and open that file. While the plain view doctrine indicates that evidence found while conducting a proper search is admissible in court, by the very act of opening the file which police had reason to believe contained evidence not described in the warrant, the search became unlawful according to the Colorado Court. Unfortunately, this resulted in otherwise probative and damning evidence becoming inadmissible against the defendant.
While the Washington Post article reporting on this case, written by preeminent 4th amendment and cybercrime scholar Orin Kerr, seems to argue that opening the file was not an issue of the particularity requirement, I think particularity still plays a role here. A challenge to the particularity requirement, if successful, means that the warrant is invalid and any search conducted under its authority also invalid. While Kerr claims that the reason the file couldn’t be opened was not the particularity requirement, I think there is another way to look at this issue. The particularity requirement provides the police officer executing the warrant with a sense of scope as to what he can look for and where he can look for it. By unreasonably exceeding this scope, the execution of the warrant is improper, thus the particularity requirement informs whether a search is proper or not. Regarding the plain view doctrine, Kerr indicates that this doctrine is about warrantless seizures. While this is true in part, the plain view doctrine as applied here, is more about a search which exceeds the scope of the warrant, and requires that the officer is conducting a lawful search while they merely stumble upon evidence, rather than going out of their way just to get that evidence which is not described in the warrant.
Kerr’s point about the evolution of the plain view doctrine in the context of digital searches here is worth noting. Traditionally, a police officer looking for a car for example, cannot look in a matchbook, because a car “could” not be there. These kinds of considerations and determinations are much harder to make in the digital context where a car’s worth of data can be stored in an extremely small container. Thus Kerr points out that the Herrera court seems to be switching the analysis from whether the evidence “could” be in the area searched, to whether the evidence “would” be there. Here, because the file was labelled with the name of the original victim, the court determined the search was improper because the evidence authorized by the warrant “would” not be there. While the fact that huge amounts of data can be stored in tiny places might cut towards this analytic shift, the problem might be that this opens the door to evading an otherwise proper search for evidence merely by purposefully mislabeling a digital file.