WA: SW for everything on a cell phone was overbroad

Defendant was investigated for sexual exploitation of a child, and the police obtained a search warrant for his phone seeking a “physical dump” of the phone, including everything on the phone: “Images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks, data/[I]nternet usage, any and all identifying data, and any other electronic data from the cell phone showing evidence of the above listed crimes.” Under prior state case law, reference to the crimes under investigation isn’t enough. The affidavit would have limited the search, but it was not incorporated by reference and then there was a complete dump of the phone. Suppression should have been granted; reversed and dismissed. State v. McKee, 2018 Wash. App. LEXIS 684 (Mar. 26, 2018):

We consider “‘whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not.'” Mann, 389 F.3d at 878 (quoting Spilotro, 800 F.2d at 963). A search warrant must be definite enough that the executing officer can identify the property sought with reasonable clarity and eliminate the chance that the executing officer will exceed the permissible scope of the search. Stenson, 132 Wn.2d at 691-92; Perrone, 119 Wn.2d at 546; see also State v. Keodara, 191 Wn. App. 305, 313, 364 P.3d 777 (2015).

The warrant in this case was not carefully tailored to the justification to search and was not limited to data for which there was probable cause. The warrant authorized the police to search all images, videos, documents, calendars, text messages, data, Internet usage, and “any other electronic data” and to conduct a “physical dump” of “all of the memory of the phone for examination.” The language of the search warrant clearly allows search and seizure of data without regard to whether the data is connected to the crime. The warrant gives the police the right to search the contents of the cell phone and seize private information with no temporal or other limitation. As in Keodara, “[t]here was no limit on the topics of information for which the police could search. Nor did the warrant limit the search to information generated close in time to incidents for which the police had probable cause.” Keodara, 191 Wn. App. at 316.

The warrant allowed the police to search general categories of data on the cell phone with no objective standard or guidance to the police executing the warrant. The language of the search warrant left to the discretion of the police what to seize. We hold the search warrant violated the particularity requirement of the Fourth Amendment. “‘[A] search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.'” Groh, 540 U.S. at 559 (quoting Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984)).