MD: Cell phones are so commonly involved in crimes that it’s now relatively easy to get a SW for one

Defendant was charged with child pornography: “I. Does an affiant’s assertion that ‘individuals who participate in [sex or drug] crimes communicate via cellular telephones, via text messages, calls, e-mails etc.,’ without more, provide a substantial basis to issue a search warrant for a cell phone?” Yes. Moats v. State, 2016 Md. App. LEXIS 148 (Oct. 25, 2016):

At the motions hearing, Sergeant Zimmerman testified that he kept Moats’s cell phone “to obtain further information on the investigation with [A.D.C.] and the sex offense, along with the CDS case.” As Sergeant Zimmerman noted in the affidavit that accompanied his request for a warrant to search the phone, he knew “through his training and experience that individuals who participate in such crimes communicate via cellular telephones ….”

Certainly, from our case law, it is clear that individuals use their cell phones to document all kinds of criminal behavior on a rather regular basis and that data recovered from cellular phones is frequently admitted as evidence of guilt in criminal trials. See e.g. Demby v. State, 444 Md. 45, 46, 118 A.3d 890 (2015) (drug-related text messages); Spence v. State, 444 Md. 1, 3, 118 A.3d 864 (2015) (drug-related text messages); Sinclair v. State, 444 Md. 16, 18, 118 A.3d 872 (2015) (screen images from cellular phone of custom wheel rims of stolen car); Cortez v. State, 220 Md. App. 688, 691, 105 A.3d 589 (2014), cert. denied, 442 Md. 516, 113 A.3d 624 (2015) (cell phone video showing a sexual assault on a woman by several men). Based on the evidence known to the police at the time Moats was arrested, we conclude that the police, reasonably believing that the phone could contain evidence that was pertinent to two active police investigations, had probable cause to seize and retain Moats’s cell phone for the period of time necessary to obtain a warrant.

Two days after Moats was released from jail, on January 26, 2015, the police obtained a warrant and searched the digital content on Moats’s phone. In the course of the search, the police recovered photographs of an explicitly sexual nature portraying an unidentified female subject as well as a video of a young woman engaged in sexual intercourse with a man the police believed to be Moats. By seizing the cell phone incident to Moats’s arrest and then subsequently obtaining a warrant before conducting any search of the phone’s contents, the police acted in accordance with the Constitution and Article 26 of the Maryland Declaration of Rights. Riley, 134 S. Ct. at 2486 (advising that it is permissible for the police to seize and hold a cell phone “to prevent destruction of evidence while seeking a warrant”). Accordingly, we discern no error in the trial court’s denial of Moats’s motion to suppress the evidence recovered from his cell phone based on the warrantless seizure of the phone incident to his arrest or the police’s failure to return the phone to Moats when he was released from jail.