MA: SW for cell phone not always limited like SW for premises

The search warrant for defendant’s cell phone for receiving threats did not have to be limited to text messages alone. The warrant could be quite broad. The court engages in an interesting discussion of differences between physical and digital searches. Commonwealth v. Dorelas, 2016 Mass. LEXIS 9 (Jan. 14, 2016):

In the physical world, police need not particularize a warrant application to search a property beyond providing a specific address, in part because it would be unrealistic to expect them to be equipped, beforehand, to identify which specific room, closet, drawer, or container within a home will contain the objects of their search. Rather, “[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found” (emphasis added). See United States v. Ross, 456 U.S. 798, 820 (1982).

However, in the virtual world, it is not enough to simply permit a search to extend anywhere the targeted electronic objects possibly could be found, as data possibly could be found anywhere within an electronic device. Thus, what might have been an appropriate limitation in the physical world becomes a limitation without consequence in the virtual one.¹¹

11. We recognize that individuals have significant privacy interests at stake in their iPhones and that the probable cause requirement of search warrants under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights serves to protect these interests. In its recent landmark decision of Riley v. California, 134 S. Ct. 2473, 2488-2491 (2014), the United States Supreme Court explained how the privacy interests implicated in smartphone searches “dwarf” those in cases in which a limited information is contained in a finite space, given the volume, variety, and sensitivity [*13] of the information either stored in a smartphone or stored remotely and accessed through a smartphone. Calling a smartphone a “phone” is a “misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.” Id. at 2489. “They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Id. See Commonwealth v. Phifer, 463 Mass. 790, 797 (2012). An iPhone has the same operating system as an Apple computer. In 2014, the storage capacities of iPhones ranged from sixteen to sixty-four gigabytes. See Riley, supra at 2489. Such devices can hold hundreds of thousands of files, including millions of pages of text and thousands of photographs. See id.

Nevertheless, much like a home, such devices can still appropriately be searched when there is probable cause to believe they contain particularized evidence. See McDermott, 448 Mass. at 770-772. However, given the properties that render an iPhone distinct from the closed containers regularly seen in the physical world, a search of its many files must be done with special care and satisfy a more narrow and demanding standard. See Hawkins v. State, 290 Ga. 785, 786-787 (2012) (cellular telephone is “roughly analogous” to container, but large volume of information contained in cellular telephone “has substantial import as to the scope of the permitted search,” which must be done with “great care and caution”). “Officers must be clear as to what it is they are seeking on the [iPhone] and conduct the search in a way that avoids searching files of types not identified in the warrant.” United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001), cert. denied, 535 U.S. 1069 (2002). “[A] computer search ‘may be as extensive as reasonably required to locate the items described in the warrant'” based on probable cause (emphasis added). United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006), quoting United States v. Wuagneux, 683 F.2d 1343, 1352 (11th Cir. 1982), cert. denied, 464 U.S. 814 (1983).

In the instant case, the police presented evidence in the warrant affidavit that included the statements of witnesses to the effect that the defendant had been receiving threatening communications on his iPhone with respect to money he owed to “people,” and indeed had been using his iPhone while arguing with an individual immediately prior to the shooting. This was admittedly sufficient to establish probable cause to believe that the defendant’s iPhone likely contained evidence of multiple contentious communications between himself and other persons in the days leading up to the shooting, that is, evidence of communications both received as well as initiated and sent by the defendant that would link him and others to that shooting. The warrant, in turn, included authorization to search for such evidence not only in the iPhone’s call history and text message files, but also in its photograph files.

The defendant contends, however, that the police had probable cause only to search his telephone call and text files, and not his photograph file. We disagree. Communications can come in many forms including photographic, which the defendant freely admits. So long as such evidence may reasonably be found in the file containing the defendant’s photographs, that file may be searched. We agree with the motion judge that the evidence sought, for which there was probable cause, might reasonably have been found in the photograph file. Therefore, a search for such evidence in that file was neither outside the scope of the warrant nor unreasonable.