Saturday, August 1, 2015
Adam M. Gershowitz (William & Mary Law School) has posted The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches on SSRN. Here is the abstract:
Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court’s assumption that requiring search warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews lower court decisions in the year since Riley and finds that the search warrant requirement is far less protective than expected. Rather than restricting search warrants to the narrow evidence being sought, some magistrates have issued expansive warrants authorizing a search of the entire contents of the phone with no restrictions whatsoever. Other courts have authorized searches of applications and data for which no probable cause existed. And even when district and appellate courts have found these overbroad search warrants to be defective, they have almost always turned to the good faith exception to save the searches and allow admission of the evidence.
This article calls on courts to take the Fourth Amendment’s particularity requirement seriously before issuing search warrants for cell phones. Just as magistrates cannot authorize police to search for a fifty-inch television in a microwave, nor should officers be permitted to rummage through all of the files on a cell phone when a narrower search will suffice. In order to effectuate the privacy guarantee in Riley, this Article proposes two approaches to narrow cell phone search warrants. First, I argue that judges should impose search protocols that specify in advance exactly how police should execute warrants and sift through electronic data. Second, this Article challenges the common assumption that all cell phone searches require full forensic analysis. In many cases involving street crimes, magistrates should initially restrict warrants to a manual search of the particular functions or applications for which there is probable cause. These two ex ante restrictions on cell phone searches will protect privacy and prevent over-use of the good faith exception, while still permitting police to examine all data they have probable cause to investigate.