N.D.Ga.: SW for cell phone contemplates later extraction of data

A search warrant to seize and search a phone contemplates extraction of data at a later time. It isn’t logically possible to do it at the time of seizure, and it requires special equipment that usually wouldn’t be brought to the scene of the search. United States v. Hendley, 2015 U.S. Dist. LEXIS 161726 (N.D.Ga. Dec. 1, 2015):

Here, Agent Brant’s decision to perform the physical extraction on Hendley’s phone was a reasonable continuation of his initial search of the phone based on three considerations. First, Agent Brant explained that he did not have the cable with him which was necessary to perform the physical extraction. Given the vast array of cell phones available in the modern day, it is not unreasonable for Agent Brant to not bring a cable to search every possible type of phone. Agent Brant also explained that a physical extraction could take four to five hours to run. Requiring Agent Brant to remain on Hendley’s property for the duration of that search would likely increase the intrusiveness of the search. See United States v. Schandl, 947 F.2d 462, 465-66 (11th Cir. 1991) (“Indeed, it might have been far more disruptive had the agents made a thorough search of each individual document and computer disc before removing it from [defendant’s] home and office.”). And, as Judge Anand points out in his R&R, a search of that duration may have been impractical given the energy demands on Agent Brant’s equipment.

The final consideration that demonstrates the reasonableness of the search is Agent Brant’s experience. According to his training, Agent Brant believed that multiple extractions needed to be performed on Hendley’s phone because each extraction produces different results. Agent Brant specifically testified that “in a situation like this, I would have gone to the case agent and said look, the logical extraction, there’s nothing there, I can’t see everything, this phone is supported for a physical extraction, and I would recommend we need to do that” [Tr. at 34]. Agent Brant’s testimony demonstrates the decision to perform the physical extraction was reasonable based on both his training in accessing computer files and the inability to see all files on Hendley’s phone.