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.