D.D.C.: Govt’s standard cell phone search warrant request had boilerplate and was overbroad and had to be narrowed

Government’s standard cell phone search warrant request had boilerplate and was overbroad and had to be narrowed. In re Search of Black Iphone 4, 2014 U.S. Dist. LEXIS 36319 (D. D.C. March 11, 2014) [recently posted from the same judge is In re Search of Information Associated with [Redacted]@mac.com, 2014 U.S. Dist. LEXIS 35323 (D. D.C. March 7, 2014)]:

III. The Government’s Applications Are Overbroad

With respect to the three Applications that do have an appropriate Attachment B, the government seeks to seize data that are outside the scope of its investigation and for which it has not established probable cause. The government is investigating the distribution and possession of child pornography. Some of the items listed in Attachment B that it wishes to seize, such as items 1,6 2,⁷ 3,⁸ 9,⁹ and 10,¹⁰ are appropriately within the scope of its investigation.¹¹ Based on the Application, it has established probable cause for those items.

6 1. Any information, including text and instant messages, relating to the transportation, travel, enticement, or sexual conduct involving a minor.

7 2 Evidence of user attribution showing who had dominion, ownership, custody, or control of the device at the time the communications described in this warrant were created, edited, or deleted, such as logs, phonebooks, saved usernames and passwords, documents, and browsing history.

8 3 Records and things evidencing the use of any Internet Protocol address to communicate with the victim or her parents through e-mail or text, including: (a) records of Internet Protocol addresses used: (b) records of Internet activity, including firewall logs, caches, browser history and cookies, bookmarked or favorite web pages, search terms that the user entered into any Internet search engine, files uploaded and records of user-typed web addresses.

9 9. All visual depictions of children, engaging in sexually explicit conduct, as defined in Title 18 U.S.C., § 2256. and child erotica, clothed or unclothed.

10 10. Any and all evidence of passwords needed to access the user cell phone.

11 These “items” refer to the numbered entries on Attachment B. See Affidavit at 11.

The government has not, however, established probable cause for the broad seizure of data in items 4,¹² 5,¹³ 6,¹⁴ 7,¹⁵ and 8.¹⁶ With one simple modification, these Applications would have avoided the overbreadth problem: seize this information only insofar as it pertains to violations of 18 U.S.C. §§ 2252(a)(2) and 2252A(a)(5)(B). However, no such limitation currently exists. Instead, the government apparently seeks to seize the entirety of these phones, including all communications, regardless of whether they bear any relevance whatsoever to this investigation. If this were not the intention, then Attachment B would not begin by saying that the government wishes to seize “[a]ll records … including …”; by using the term “including,” the Applications make the seizure list broader than the categories that are specifically listed. Affidavit at 11.¹⁷ That is precisely the type of “general, exploratory rummaging in a person’s belongings” that the Fourth Amendment prohibits. Coolidge v. N.H., 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).

12 4. Any and all list of names, telephone numbers, and addresses stored as contacts to include pictures.

13 5. Any and all names of persons [sic] has contacted recently contacted [sic] through calls and text messages

14 6. Images, pictures, photographs sent or received by user.

15 7. The content of any and all text messages sent or received by user.

16 8. The content of any and all voice mail messages.

17 Although this Court generally distinguishes between “records” and “content,” as in 18 U.S.C. § 2703, it is evident that these Applications include both records and content under the term “records.”

If the government intends to resubmit these Applications, it must be more discriminating when determining what it wishes to seize, and it must make clear that it intends to seize only the records and content that are enumerated and relevant to its present investigation. In their present state, however, the Applications are impermissibly lacking in specificity as to what exactly will be seized and are therefore overbroad.

Isn’t it refreshing to find a USMJ who insists on reading and analyzing a search warrant application for true sufficiency and not just sign it because the government asks for it? No rubber stamp here.