A search warrant for cell phones text messages did not prohibit the searchers looking at photographs as well because photographs are commonly included in text messages. There was admittedly probable cause for the text messages, but it here included photographs. State v. Page, 2019 N.H. LEXIS 53 (Mar. 19, 2019):
The defendant first argues that the affidavit did not establish probable cause to search for photographs. He does not “dispute that the affidavit established probable cause to search his phone for text messages that he and Sylvester exchanged after the victim’s hospitalization.” He contends, however, that the affidavit, which did not mention photographs, “failed to show that it was ‘probable’ that photographs constituted the fruit, instrumentalities, or evidence of any crime.”
. . .
When the information presented in Sonia’s affidavit is viewed in a commonsense manner and permissible reasonable inferences are drawn from the facts averred, we conclude that the issuing magistrate “had a substantial basis for concluding that there was a fair probability” that photographs with evidentiary significance to the crimes under investigation would be found on the defendant’s cell phone. In re Search Warrant for 1832 Candia Road, 171 N.H. at 56. The affidavit stated that Sylvester was the mother of the 11-month-old victim, the defendant was her boyfriend, and that Sylvester and the defendant lived together. The affidavit further averred that Sylvester and the defendant had “been in communication with each other through their cellular telephones regarding S.S.’s condition and what may have happened to him.” (Emphasis added.)
The issuing magistrate could “draw upon common sense,” Grimmett, 439 F.3d at 1270, to find that mothers and other caregivers of young children, including live-in boyfriends, often take pictures of the children in their care with their cell phones and often save on their cell phones pictures of those children taken by themselves and others. The magistrate could also infer that there was a fair probability that two such persons who were communicating about how a young child in their care had been severely injured would send each other pictures of the child to document his appearance when last in the sender’s care, or perhaps other explanatory photographs (of, for instance, a heavy piece of furniture or a steep set of stairs that might be claimed to have caused the injuries). As the State argues, Sonia’s affidavit “set forth claimed incidents by the defendant and Sylvester that could have caused visible injuries to the victim, any of which could be documented by photograph. These controlling facts and circumstances properly tied ‘photographs’ sought in the warrant to the ‘messages’ for which the defendant has conceded probable cause existed.” (Citation omitted.) We conclude that Sonia’s affidavit established probable cause to search the defendant’s cell phone for photographs. Cf. State v. Ball, 164 N.H. 204, 209 (2012) (affidavit averring that a third person’s “cell phone contained sexually explicit images of children and that he used it to transmit such images to others” and that the third person and the defendant “exchanged messages,” was “sufficient to support an inference that [the third person] used his cell phone to transmit at least one sexually explicit image of a child to the defendant’s cell phone”).
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)