D.Nev.: Important case: SW affidavit didn’t support the breadth of cell phone search

Defendant was arrested for sex trafficking child in a reverse sting operation, and the court finds the search warrant for his telephone lacked probable cause to search it for child pornography. “That Lofstead may have attempted to purchase commercial sex from a minor does not automatically imply that he possessed or attempted to possess child pornography, nor does the excerpted conversation from Lofstead’s text conversation with the agent included in the warrant affidavit support a ‘fair possibility’ that his phone would contain child pornography. Accordingly, Item 6 in Attachment B of the warrant affidavit is not supported by probable cause.” “But there is no justification for an unrestricted search without any temporal limitations here. To the contrary, this case illustrates how the complete absence of temporal limitations can result in an exceptionally expansive search. Like in Roberts, the government here had very precise knowledge of the date and times texts and internet searches could be targeted because Lofstead had communicated directly with undercover law enforcement agents. See 430 F. Supp. at 717. The government therefore knew exactly when the phone was used to commit the target offense and could tailor–and indeed should have tailored–the search, here even to a single day. As discussed above, the government lacked probable cause to search for evidence of other incidents of wrongdoing, so there was probable cause to search for text messages, internet search history, ingoing and outgoing calls, and other data only in a very limited window of time. But the Warrant did not reflect that limitation, or otherwise guide executing officers in their search so that data could be targeted and tailored to the demonstrated probable cause. The scope of the Warrant was therefore impermissibly overbroad.” The indictment is also dismissed for government overreach in even bringing the case. United States v. Lofstead, 2021 U.S. Dist. LEXIS 224735 (D.Nev. Nov. 22, 2021) (press release on indictment).