S.D.Cal.: SW which was not overbroad merely by including a “tending to show” phrase

Scanning text messages on a cell phone at the border was reasonable. This wasn’t a full search, and this was just a “non-forensic scan” of the phone and not a “searching inquiry.” This led, however, to a search warrant which was not overbroad merely by including a “tending to show” phrase. Finally, a search protocol was not required. United States v. Leininger, 2016 U.S. Dist. LEXIS 152094 (S.D.Cal. Nov. 2, 2016):

As an initial matter, the Ninth Circuit has rejected the argument that use of “catch-all phrases” such as “tending to” renders a warrant per se unreasonable when context adequately limited the scope of the search. In United States v. Reeves, 210 F.3d 1041 (9th Cir.2000), the court held that words “may include, but is not limited to,” and “other items” did not make a warrant impermissibly overbroad because context made clear that the search was for “evidence of the possession, manufacture, and delivery of the controlled substance methamphetamine.” Id. at 1046. And in United States v. Shi, 525 F.3d 709 (9th Cir. 2008), the words “including, but not limited to” did not make a warrant insufficiently particular because it authorized a search of only the limited area the defendant inhabited. See id. at 731. In United States v. Garcia-Alvarez, No. 14-CR-0621 JM, 2015 U.S. Dist. LEXIS 22834, 2015 WL 777411, at *3 (S.D. Cal. Feb. 24, 2015), the court approved a warrant for a cellphone search with “including but limited to” and “tending to” language where that language was limited to searching for “information relevant to drug trafficking and identifying Defendant’s communications, movements, and co-conspirators.”

Here, context provided by the warrant limited the search to a specific area—the contents of Defendant’s cell phones—and directed searchers to look for information relevant to drug trafficking and to identifying Defendant’s communications, movements, and co-conspirators. That information bore directly on the crime for which she was arrested. See United States v. Shi, 525 F.3d at 731 (holding that the words “including, but not limited to” and “tend to” did not render a warrant insufficiently particular where the warrant authorized a search only of the “[b]unk space, cupboard, drawer, and two storage spaces” which the crew had told the agents belonged to the defendant).

Here, the “including but not limited to” and “tending to” language is similarly limited by the context of searching for information related to “smuggling controlled substances from Mexico to the United States,” and to establishing the identity of co-conspirators and other facilities used to import controlled substances. (ECF No. 20-1 at 9.) Thus, the warrant was not more general than the probable cause upon which it was based.