There was nexus between defendant’s alleged crime of drug dealing and his cell phone since cell phones are a tool of drug dealers. The search warrant was not impermissibly overbroad. Although 1000 pages of information was extracted from the phone, it wasn’t practical to do it any other way. Carter v. State, 2018 Ind. App. LEXIS 234 (June 28, 2018):
P18 Examining the instant case in light of Eaton, here, the supporting affidavit even more directly set forth the nexus between the asserted criminal activity—dealing methamphetamine—and the place to be searched—the cell phone, through which dealers typically communicate concerning their illegal activity. Thus, the affidavit provided a substantial basis for determining that probable cause existed to support the issuance of a warrant to search the phone. Yet, underlying probable cause is not the only facet of a constitutional warrant.
. . .
P23 However, the warrant specifically described the place law enforcement could search—the phone recovered from Carter—and specifically described what law enforcement could search for—(1) “any information relating to calls, messages, including Facebook messages and accounts,” and (2) “all information … that would indicate the identity of the phone’s owner/user.” Pre-trial Hearing Exhibit 1. Moreover, the first clause permitting the search for calls and messages enjoys a close nexus to the probable cause that justified issuing the search warrant—which is that Carter was a suspected drug dealer, and drug dealers use cell phones to communicate with others involved in illicit drug activity. See Eaton, 889 N.E.2d at 300. Thus, this aspect of the search warrant was “tailored to its justifications.” Maryland, 480 U.S. at 84.
P24 In carrying out the search, law enforcement did extract more than one thousand pages of information using a “logical extraction” device that created an “auto generated” report of the file architecture on the phone. Tr. Vol. IV at 142-43. Although Carter draws our attention to the quantity of data extracted, he has not demonstrated that there was any other way to practically conduct the permitted search. As the State observes, “[a] great deal of other information will likely have to be sifted through in order to find the relevant information—similar to looking through drawers in a home or office file cabinet for specific files or letters that are relevant to the investigation.” Appellee’s Br. at 15. Ultimately, we discern no indication that law enforcement had the ability to determine, ex ante, that certain pages could not have contained any of the information sought. See United States v. Stabile, 633 F.3d 219, 238 (3d Cir. 2011) (“‘[A] computer search may be as extensive as reasonably required to locate the items described in the warrant’ based on probable cause.” (quoting United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006)); Wheeler v. State, 135 A.3d 282, 301 (Del. 2016) (“Some irrelevant files may have to be at least cursorily perused to determine whether they are within the authorized search ambit.”).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)