NH: Cell phone SW for pictures and texts in a homicide case was particular

The search warrant for defendant’s cell phone was still particular enough for photographs that could be tied to text messages in a murder case. Even deleted photographs were subject to recovery. State v. Page, 2019 N.H. LEXIS 53 (Mar. 19, 2019):

Here, the trial court was “not convinced that it would have been reasonably possible for the search warrant” to do so. The court found that although the forensic examiner who searched the defendant’s cell phone testified at the suppression hearing that it would have been possible to limit a “search to only those photographs bearing indications that they may pertain to the evidence that the investigators justifiably sought,” and, in particular, to “photographs taken on or around November 13, 2015,” his “testimony also revealed … that using such targeted search procedures could ultimately be ineffective because they could allow evidence subject to seizure under the warrant to go undiscovered. For example, a user could employ various applications or methods to manipulate a file’s extension or its date and time signifies.”

Moreover, deletion of a text message used to send a photograph could “caus[e] any record that the photograph was sent via text message to eventually be overwritten, while the photograph itself could still remain on the phone.” The forensic examiner noted that file deletion could destroy data indicating when a photograph was taken, sent, or received, while preserving the photograph itself. The forensic examiner’s testimony takes on greater significance in light of indications in Sonia’s affidavit that the defendant might well have deleted or manipulated data on his cellphone. Specifically, the affidavit noted that the defendant rescinded consent to search his phone and gave police investigators multiple inconsistent accounts of what caused the victim’s injuries. On this record, we agree with the trial court that it would not have been reasonably possible to narrow the warrant’s scope as to photographs sought. See Tucker, 133 N.H. at 207. Accordingly, we affirm the trial court’s ruling as to the warrant’s particularity.

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