CA6: SW for cell phone for video of def’s obstructing officer properly led to finding CP

Defendant was stopped by a police officer and became argumentative, and he refused to provide his license, insurance, and registration. He said he was attempting to record the officer on his cell phone but he was too busy with it for just that. The officer took the phone and put it in defendant’s trunk. Defendant got it back and was manipulating it again. If the phone was recording, it would have evidence of defendant’s obstruction, so the officer took the phone and a search warrant was obtained, seeking to search essentially all of the phone for evidence. An officer used a forensic downloader to copy the phone and started looking through the videos. Potential child pornography was seen in a thumbnail and passed over. The rest were looked at. The possible CP was reported, and another search warrant was sought for the phone for that. The warrant was neither overbroad or improperly executed. A protocol for searching “newest first” isn’t required. “[W]e will not get involved in the minutiae of determining specifically what methodologies should be taken”; reasonableness is the question, and this was reasonable. United States v. Rarick, 2016 U.S. App. LEXIS 317 (6th Cir. Jan. 7, 2016) (unpublished despite being 2-1):

While Rarick would have us declare that, to be reasonable, the search here should have at least been commenced by using a date filter before expanding the search, we will not get involved in the minutiae of determining specifically what methodologies should be taken, but will rather examine whether the search executed under the facts of this case was reasonable. Searching by date may have been one reasonable search methodology, but it was not the only reasonable one. The facts of this case lead us to conclude that the search conducted by Icenhour was executed in a reasonable manner. Though, under certain portions of the warrant, Icenhour was given leave to search virtually the entire contents of Rarick’s phone, the record establishes that he did not do so. Rather, he targeted his search to where he reasonably believed the recording was most likely to be found—among the audio and video files. Icenhour testified that he scrolled through the thumbnails of the files on Rarick’s phone. Though he observed the child pornography photos during this search, he continued to scroll through the files until he found an image of a beige wall that he thought could be the start of the video recorded outside of the Cheap Tobacco store. Rather than continue to search after discovering that this beige wall was a part of a video containing more pornography, he turned off the video and proceeded to get a second warrant. Although the recording could have been found by first searching for data recorded on February 14, 2013, the date of Rarick’s arrest, Icenhour’s approach of searching by scrolling through all of the thumbnails, rather than just those on the date of Rarick’s arrest, and taking care not to closely examine more than the target of the search warrant was not unreasonable.