MO: “All data” SW for cell phone was particular where crimes under investigation also listed in SW

No Missouri case deals with the question of particularity in a cell phone search. One group finds “all data” warrants not particular. Others hold such warrants valid if the crime under investigation is also mentioned. Here it was mentioned to be drug delivery and rape, so the court follows those cases and holds the warrant particular enough. Because the cell phone was in the possession of the police for the eight months before the search warrant was sought, it was not stale. [But what about unreasonableness in general? That’s a significant issue, too.] Defendant’s voluntarily entering his password into the phone to open it for his expert in the presence of law enforcement makes the “foregone conclusion” doctrine apply, and he can’t plead the Fifth Amendment to compulsion of the password. State v. Johnson, 2019 Mo. App. LEXIS 297 (Mar. 5, 2019):

Other cases, however, have held that the particularity requirement in a warrant authorizing the search of all data or all files in a cell phone is met so long as the warrant constrains the search to evidence of a specific crime. See, e.g., United States v. Bishop, 910 F.3d 335, 336-37 (7th Cir. 2018); United States v. Castro, 881 F.3d 961, 965 (6th Cir. 2018); United States v. Bass, 785 F.3d 1043, 1049-50 (6th Cir. 2015); United States v. Zongli Chang, 2018 U.S. Dist. LEXIS 128223, 2018 WL 3640435 at *5 (E.D. Mich. July 31, 2018); United States v. Grinder, 2018 U.S. Dist. LEXIS 104117, 2018 WL 2943235 at *4-5 (D. Md. June 12, 2018); People v. English, 52 Misc. 3d 318, 321, 32 N.Y.S.3d 837 (N.Y. Sup. Ct. 2016). The rationale for holding that such warrants are sufficiently particular and not overbroad is that “[c]riminals don’t advertise where they keep evidence.” Bishop, 910 F.3d at 336. Indeed, “[a] warrant authorizing the search of a house for drugs permits the police to search everywhere in the house, because ‘everywhere’ is where the contraband may be hidden.” Id. at 336-37. Moreover, in the context of electronic devices such as computers and cell phones, “‘criminals can–and often do–hide, mislabel, or manipulate files to conceal criminal activity [such that] a broad, expansive search of the [device] may be required.'” Bass, 785 F.3d at 1049-50 (citations omitted). Because there is no way for law enforcement to know in advance how a suspect may label or code files that contain evidence of criminal activity, “by necessity government efforts to locate particular files will require examining many other files to exclude the possibility that the sought after data are concealed there.” English, 52 Misc. 3d at 321-22. Just as a warrant authorizing a search of a filing cabinet allows the search of every document in the files because the incriminating evidence may be found in any file or folder, so too should a warrant allow the search of every document on a cell phone, which serves the same function as a filing cabinet. Bishop, 910 F.3d at 337 (citing Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976) and Riley, 134 S. Ct. at 2489). Thus, a warrant is sufficiently particular if it “cabins the things being looked for by stating what crime is under investigation.” Id.

We find the reasoning of Bishop, Bass, English, and similar cases persuasive. The warrant in this case constrained the search of Johnson’s phone to evidence of the specific crimes of distribution, delivery, and manufacture of a controlled substance and first-degree rape. The affidavit that was incorporated into the warrant described in detail the offenses that Johnson was suspected of committing and how cell phones could be used in the commission of those offenses. At the time the cell phone was seized, the officers could not have known where such evidence was located in the phone or in what format, such as texts, videos, photos, emails, or applications. Under the circumstances, the scope of the warrant was sufficiently particular and was not overbroad. Bass, 785 F.3d at 1050.

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D. Compulsion of Passcode and Fifth Amendment

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In this case, before the State sought the order compelling Johnson to enter his passcode to unlock the phone so the State’s expert could examine it, the police observed Johnson enter his passcode into the phone and unlock it so that his expert could examine it first. The evidence in the light most favorable to the court’s suppression order shows that, despite Johnson’s current arguments to the contrary, he entered his passcode knowingly and voluntarily in the presence of both defense counsel and law enforcement for the purpose of having his expert examine the phone for exculpatory evidence. This action satisfied the elements of the foregone conclusion exception, because the implicit facts that were conveyed through his act of entering the passcode the second time pursuant to the order to compel — the existence of the passcode, its possession or control by him, and the passcode’s authenticity — were already known to the State and, therefore, were a foregone conclusion. See Andrews, 197 A.3d at 205; Gelfgatt, 11 N.E.3d at 615.

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