DC Cir.: The mere fact a person has a cell phone isn’t PC to search it; must be PC evidence would be found

“Most of us nowadays carry a cell phone. And our phones frequently contain information chronicling our daily lives—where we go, whom we see, what we say to our friends, and the like. When a person is suspected of a crime, his phone thus can serve as a fruitful source of evidence, especially if he committed the offense in concert with others with whom he might communicate about it. Does this mean that, whenever officers have reason to suspect a person of involvement in a crime, they have probable cause to search his home for cell phones because he might own one and it might contain relevant evidence? That, in essence, is the central issue raised by this case.” And the answer is no. The mere fact a person likely has a cell phone, without more, doesn’t provide probable cause to search it for evidence of crime. The government has to show that the phone has a connection to the crime under investigation. United States v. Griffith, 2017 U.S. App. LEXIS 15636 (D.C. Cir. Aug. 18, 2017):

2. That brings us back to the warrant application’s reliance on cell phones—in particular, on the possibility that Griffith owned a cell phone, and that his phone would be found in the home and would contain evidence of his suspected offense. With regard to his ownership of a cell phone, it is true that, as the Supreme Court recently said, cell phones are now “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley, 134 S. Ct. at 2484. We do not doubt that most people today own a cell phone.

But the affidavit in this case conveyed no reason to think that Griffith, in particular, owned a cell phone. There was no observation of Griffith’s using a cell phone, no information about anyone having received a cell phone call or text message from him, no record of officers recovering any cell phone in his possession at the time of his previous arrest (and confinement) on unrelated charges, and no indication otherwise of his ownership of a cell phone at any time. To the contrary, the circumstances suggested Griffith might have been less likely than others to own a phone around the time of the search: he had recently completed a ten-month period of confinement, during which he of course had no ongoing access to a cell phone; and at least one person in his circle—his potential coconspirator, Carl Oliphant—was known not to have a cell phone.

We are aware of no case, and the government identifies none, in which police obtained authorization to search a suspect’s home for a cell phone without any particularized information that he owned one. In the typical case, officers will have already come into possession of a suspect’s phone after seizing it on his person incident to his arrest. See, e.g., id. at 2480-82; United States v. Bass, 785 F.3d 1043, 1049 (6th Cir. 2015). Officers also might receive reliable indication of a suspect’s possession of a cell phone. See, e.g., United States v. Mathis, 767 F.3d 1264, 1269 (11th Cir. 2014); United States v. Grupee, 682 F.3d 143, 145-46 (1st Cir. 2012). There was no such information here about Griffith.