NH: PC for text messages on cell phone permitted search of photographs on the phone as well

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.”

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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”).

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