Fault Lines
21 June 2017

The Fallacy of Search Warrant Analogies

Jan. 27, 2016 (Mimesis Law) — On July 3, 2011 in Boston, Massachusetts, Michael Lerouge was shot several times in the back during a shootout with a then-unknown person.  Witnesses described the unknown person as wearing a green shirt or jacket and pointed out his last known direction of travel to the police.

The police soon located Denis Dorelas, who was wearing a green jacket and bleeding from gunshot wounds to his leg.  Witnesses who knew Dorelas indicated that he had been receiving some threatening messages on his iPhone in the time leading up to the shootout.

Boston Police obtained a search warrant for Dorelas’ phone to look for:

Subscriber’s name and telephone number, contact list, address book, calendar, date book entries, group list, speed dial list, phone configuration information and settings, incoming and outgoing draft sent, deleted text essages, saved, opened, unopened draft sent and deleted electronic mail messages, mobile instant message chat logs and contact information mobile Internet browser and saved and deleted photographs on an Apple iPhone, silver and black, green soft rubber case.

The subsequent search of the phone found pictures of Dorelas wearing the green jacket and holding a gun.   These pictures were not found attached to any text messages that might have been exchanged between Dorelas and Lerouge, however.  They were found in the electronic photo section.  Due to the fact that both Dorelas and Lerouge were actively shooting at each other, Dorelas was ultimately only charged with several firearms violations, and he very much wanted the pictures of himself and the gun suppressed.

As noted in a post by TechDirt’s Tim Cushing, the argument made by Dorelas’ attorneys in their argument for suppression clearly illustrates some of the more technical aspects in the drafting of a search warrant for technology.  In his analysis of Massachusetts’ Supreme Judicial Court ruling on Dorelas’ case, Cushing argues that comparing a cell phone to a house in analyzing one’s right to privacy is an inadequate analogy that works against the accused.

Cushing notes that the United States’ Supreme Court ruling in Riley v. California in 2014 was an initial victory for privacy rights when it came to cellular telephones.  Using the analogy of comparing a cell phone to a house, the Supremes declared that the police may not search the contents of a person’s cell phone without a search warrant.   However, he goes on to argue that while he wholeheartedly agrees that a search warrant should be required before searching a digital device, the nature of technology requires even more specificity:

So, when searching the phone, the government may treat it like a house, providing little more than a short physical description of the item, along with where it thinks evidence may be found.  The government, however, should not extend this analogy further than is necessary.  It cannot remain vague on the specifics of what it’s searching for, nor can it avail itself to the entire contents of the device without reason.

Since the Boston Police had reason to believe that Dorelas had been receiving threatening text messages from Lerouge, there is at least a prima facie argument that there was some type of evidence on Dorelas’ phone.  Assuming for the sake of the argument that the evidence was strong enough for a search warrant of the phone, Cushing argues that it was only strong enough to search the text messages portion of his phone.  The request to search everything else, including “all saved and deleted photographs” was overbroad and not supported by the evidence.

From an intellectual standpoint, Cushing is absolutely right. The evidence in the Dorelas case indicated he was the one receiving the threats, not making them.  Any photographs that were relevant to the shootout should not have originated from Dorelas’ phone.  Going through his photographs was merely a fishing expedition, and unfortunately for Dorelas, it was one that yielded results.

The majority opinion in the Dorelas case acknowledged the fact that the warrant was “awkwardly written,” but noted that probable cause was “admittedly sufficient.” The opinion also noted that photographs are considered communication and, therefore, the search of the photo files was permissible.  The opinion took into account the technical nature of the different types of files and applications on a cellular telephone, but found that the search was not overbroad.

Three members of the court dissented, noting that the search of the photograph files “was not supported by probable cause, and the warrant authorizing that search was not sufficiently particular.”  Justice Barbara Lenk also noted that she wished to “express my concern about the future direction of our search and seizure law in a digital context.”

Both Cushing’s and Justice Lenk’s concerns about the future direction of digital search and seizure should concern us all. It may seem like a logical step that if a police officer has a warrant to search a suspect’s phone the digital photos are just going to be a part of that search.  What about Facebook information that can be gleaned from a Facebook app on the phone?  Or Twitter?  Or an online journal app?  Or a banking app?

Cushing notes:

While narrowing the scope of purely digital searches may be difficult, it is not impossible. The purpose of the court is not to make things easier for law enforcement, but rather demand more from them as the stakes rise.

Justice Lenk notes forensic analysts use very specific search criteria when deconstructing information from a cellular phone and makes that very valid point that those narrow searches can be willfully blind to items not covered in a warrant. In the meantime, Lenk gently criticizes the majority of the court for bypassing the issue of the Plain View Doctrine when it comes to digital searching, noting “the day when the court will be called upon to determine more precisely when and how the plain view exception applies to digital searches is close at hand.”

Returning to the theme of analogizing digital devices to houses, Cushing closes his article with:

The inevitable has been postponed. This court – and many others around the country – will have to tangle with this issue and decide for themselves whether they’d rather apply analogies or remedies.  Only one will prevent digital devices from being treated with the disregard as the British treated colonists’ homes during the execution of general warrants.

Okay, so maybe the last line was a little dramatic, but Cushing’s point is well taken. Ultimately, the case of Denis Deloras may not have been the best test case to draw distinctive lines on.  From reading the opinion, it doesn’t sound like the photos in question were necessarily a key piece of evidence given a totality of the circumstances.  Justice Lenk and Cushing are right to predict that the day is soon coming where a more pointed argument will be made for exclusion.

When that day comes, the analogy that everything on a cell phone is fair game with an overbroad warrant will be like fitting a square peg in a round hole.

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