Lawyers Journal

Ask for what you want: Cell phones and the Fourth Amendment

It is fair to suggest that when the constitution was being drafted and case law was being established to determine the requirements for a search warrant, cell phones were nowhere on the radar. However, due to the current widespread use and sophistication of cell phones, it is my position that the same "particularity requirement" of a warrant for a home should apply to cell phones.

Both the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights require that probable cause be established in order for a search warrant to issue. Additionally, they both require that the warrant "describe the place to be searched and the things to be seized." The Fourth Amendment requires "particularly" and Article 14 requires a "special designation." Commonwealth v. Gauthier, 425 Mass. 37, 42 (1997). The scope of the warrant is vitally important because a person maintains a general right to privacy. If this right is to be disturbed the intrusion should be as minimal as possible allowing a person to retain some level of privacy by preventing police officers from having free reign to do as they please.

Recognizing that an individual has an expectation of privacy in the data stored on their cell phone several Massachusetts trial courts at the federal and state level have held that the search of a cell phone is a search in the constitutional sense and therefore requires a warrant. See United States v. Wurie, 612 F. Sup. 2d 104, 109 (2009). ("It seems indisputable that a person has a subjective expectation of privacy in the contents of his or her cell phone."); Commonwealth v. Diaz, 26 Mass. L. Rep. 94, 2009 Mass. Super. Lexis 218 (Essex Sup. Court 2009) (Lowy, J.); Commonwealth v. McGuane, Mass. Sup. Ct. (Middlesex Sup. Ct. March 5, 2007) (Kottmyer, J.) Redacted Ruling from Boston Municipal Court at 2 (July 6, 2011) (Frison, J.)

It is my position that the requirement of probable cause alone does not adequately protect an individual's right to privacy of data in his or her cell phone, and to respect that right to privacy in a meaningful way courts should incorporate the "particularity requirement" to warrants issued to search cell phones.

Presently when police obtain a search warrant for a cell phone they are permitted broad access to information that is stored in a cell phone that extends beyond information believed to be linked to criminal activity. When executing a search warrant for a cell phone, law enforcement obtains all information stored in a cell phone by conducting what is termed a "dump." This dump procedure obliterates any privacy a person may have believed they would retain. In other words, the police may have probable cause to search information of criminal activity which lies in text messages, but the dump allows them to view pictures, emails, bank accounts, etc. During this process they may find evidence of other criminal activity and they can deem it "plain view." The practice of dumping cell phones is in direct contravention of the Fourth Amendment and Article 14 and is one of the main reasons the "particularity requirement" is needed.

Joe Nicholls, principal of Nicholls Data Recovery, LLC, commented that cell phones consist of separate and distinct databases (email, text, call log, photos, etc.) The database which holds text messages is separate and distinct from the database which holds photographs or other applications present on a cell phone.

"When one seeks to access these various databases they must go into different doors," he said. Entering these separate databases and doors is analogous to accessing different rooms within a house that are separated by doors. Therefore, the "particularity requirement" should have the same effect on cell phones as it does a house, which is to serve "as a safeguard against general exploratory rummaging by the police through a person's belongings," Commonwealth v. Freiberg, 405 Mass 282, 2987 (1989) and "both defines and limits the scope of the search and seizure, thereby protecting individuals from general searches." Commonwealth v. Pope, 354 Mass. 625, 629 (1968). The search should be limited to whichever database or databases are specifically identified in the search warrant.

The proposed "particularity requirement" is a feasible task. I learned from Nicholls that data extraction tools exist which allow targeted extraction of data from cell phones so that technicians can access only the desired information without intruding into other data. Armed with the capability to go into a specific database to search and retrieve specifically what is sought eliminates any reason why an entire dump of a cell phone must be conducted.

Applying the "particularity requirement" to warrants for cell phones by requiring warrants to describe the place to be searched (which database) and the things to be seized (i.e. texts or photos) would provide cell phone owners meaningful privacy rights and it would not impede law enforcement's access to desired information.

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