DE: Just being involved in a shooting doesn’t give nexus to search a cell phone

The state here failed to show nexus between defendant’s cell phone and a shooting incident. In addition, the search warrant lacked all particularity — it sought to search three cell phones for data and calls without time limit or scope. Motion to suppress granted. State v. Westcott, 2017 Del. Super. LEXIS 41 (Jan. 23, 2017):

The State’s submission delineates the limited basis for probable cause that exists in the affidavit. The affidavit effectively stated allegations sufficient for the reviewing magistrate to find probable cause (1) that Mr. Westcott committed the shooting, (2) that Mr. Westcott was involved in the distribution of heroin, and (3) that the mobile phones at the apartment belonged to Mr. Westcott.

Missing in the State’s probable-cause analysis, however, is a logical nexus between Mr. Westcott’s ownership of the phone and the existence of digital evidence of the crimes on that phone.

Our Supreme Court in Starkey upheld the search of a mobile phone where the affidavit included a statement that “[P]ersons involved in criminal acts will utilize Mobile Electronic Devices such as cellular telephones to further facilitate their criminal acts and/or communicate with co-conspirators.” And the detective in that case went on to state that “retrieval of the cellular data could reveal the identity [of the] owner of the phone as well as provide a list of all calls made and received by that cell phone.” The detective in that case also provided specific evidence that the police hoped to find in support of their case, based on statements from other witnesses. The Court held this logical nexus to be sufficient to establish probable cause for the search.

Here, however, Detective Sergeant Horsman did not expressly state any nexus between Mr. Westcott’s ownership of the mobile phone and the existence of evidence of the crimes (including a confession) on that mobile phone. Although the magistrate may draw reasonable inferences from the factual allegations of the affidavit, the leap required here is a long one. The mere fact that a defendant owns a mobile phone is not, in and of itself, sufficient to warrant an inference that evidence of any crime he or she commits may be found on that mobile phone. The affidavit did not provide probable cause for a search.

. . .

Here, the search warrant authorizes a search of all “data and cellular logs.” This description does not limit the scope of the officer’s search of the mobile phones to relevant material and does not place any limitation on the types of “data, media, and files” to be searched.

There is also no temporal limitation on the search. The police alleged that the shooting occurred on May 11 and the presence of heroin at the apartment provided probable cause for its recent distribution. The police should have sought a more limited search warrant permitting the search of suitably recent data from the phones.

Instead, the application sought a general search “of the three phones.” The warrant thus provides broad permission to rummage through the entire digital lives of the phones’ owners. Accordingly, it does not contain the level of particularity required under the Constitution of the United States, the Delaware Constitution, or Delaware statute.