PA: Cell phone SW has to protect privacy, but an internet-based crime will permit a broad search

Because of the nature of the invasion into privacy, a cell phone search has to be as limited as the search of a home, and the probable cause defines the scope of the search. All they had for starters was an IP address and a home, and that got them inside. The self-limiting language of the warrant was clear enough. The search had to start to know what they had and were dealing with. “[J]ust as with a search of a home and other spaces where an individual maintains a privacy interest, if there is probable cause that evidence of a crime will be found within an electronic device, that evidence should not be shielded simply because a defendant commingles it with personal information in a digital space with vast storage capacity. This is particularly so when, like here, the nature of the crime is electronic or internet based.” Commonwealth v. Green, 2021 Pa. LEXIS 4283 (Dec. 22, 2021) (4–3) (dissents here and here):

… Based on the information available to the corporals at the time they requested the warrant, the pornography could have been shared by any user on any device using the internet in the home. There was no way to narrow this inquiry without conducting a search.

Importantly, the warrant also included self-limiting language that permitted the officers only to search for “evidence relating to the possession and/or distribution of child pornography.” This line was critical in focusing the search and seizure to items connected with the criminal activity for which there was probable cause. This limiting language prevented an indiscriminate or discretionary search of the home because any actions taken by the searching officers were restricted to only what could yield evidence of child pornography. The record reflects that this was not an exploratory search, but one “directed in good faith towards the objects specified in the warrant.” Matthews, 285 A.2d at 514.

Ultimately, given the realistic limitations of this investigation and the nature of this crime, the warrant could not have described the device sharing the contraband with any more detail than the IP address and associated physical address. There was, nevertheless, probable cause to believe that evidence of criminality would be found on a device within the home. Stated simply, the warrant described as particularly as reasonably possible the items for which there was probable cause. Therefore, the warrant was not overbroad in this respect. See Matthews, supra (“where the items to be seized are as precisely identified as the nature of the activity permits … the searching officer is only required to describe the general class of item he is seeking.”).

Having concluded that the warrant was not overbroad with respect to the physical items it permitted to be searched and seized, we now address whether the warrant was overbroad with respect to the digital forensic search of the seized devices.

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Because a cell phone often contains even more personal information than a home, it logically follows that a warrant should be required to search the contents of a cell phone, just as a warrant is required to search the contents of a home. This rationale, however, does not support the conclusion that, once obtained, a warrant to search a digital device should be held to a higher overbreadth standard than a warrant to search a home simply because of the former’s storage capacity. Of course, as discussed supra, our Constitution requires that all warrants, including warrants to search a digital space, (1) describe the place to be searched and the items to be seized with specificity and (2) be supported by probable cause to believe that the items sought will provide evidence of a crime. In applying this standard, courts must be cognizant of the privacy interests associated with personal electronic devices. However, just as with a search of a home and other spaces where an individual maintains a privacy interest, if there is probable cause that evidence of a crime will be found within an electronic device, that evidence should not be shielded simply because a defendant commingles it with personal information in a digital space with vast storage capacity. This is particularly so when, like here, the nature of the crime is electronic or internet based.

Thus, consistent with Johnson, we hold that the Grossman standard for an overbreadth challenge applies equally to the search of a digital space as it does for a physical search. Johnson, 240 A.3d at 585. Applying that standard to the digital search in this case, we again look to see whether the warrant described “as nearly as may be those items for which there is probable cause.” Grossman, 555 A.2d at 899 (“The clear meaning of this language is that a warrant must describe the items as specifically as reasonably possible.”); Pa. Const. art. I, § 8.

As discussed earlier, Appellant argues that probable cause was limited to the evidence of child pornography shared from his IP address on December 28, 2014, and therefore the warrant was overbroad for failing to include “specific dates, types of files, [or] specific programs.” Appellant’s Brief at 15. According to Appellant, the warrant was overbroad because it “allowed for the prohibited ‘rummaging’ through all files on all seized devices, nearly all of which contained private, non-criminal material.” Id. at 16. Appellant’s argument again minimizes the depth of probable cause and exaggerates what that warrant authorized in this case.

Although Corporal Goodyear personally downloaded an image file depicting child pornography on December 28, 2014, that did not mean probable cause was limited to that particular date or that particular file. The affidavit of probable cause explained that, based on the corporals’ experience investigating this type of crime, individuals who download and share child pornography usually maintain a collection of child pornography in a secure, private location for long periods of time. Importantly, the affidavit noted that the user investigated here “had such a collection of child pornography available on a [file-sharing] network.” Affidavit of Probable Cause at ¶ 25. These facts established probable cause that someone was sharing a collection of child pornography in general, which is exactly what the warrant permitted the officers to search for and seize. Because probable cause was not limited to the single instance of conduct that Appellant points to, the warrant did not need to include a specific date, type of file, or program in order to satisfy the requirement to describe the items as nearly as may be.

Appellant also argues that the warrant’s self-limiting language allowing a search only for “evidence relating to the possession and/or distribution of child pornography” did not cure its alleged overbreadth because officers still had access to the entire device and all the personal, non-criminal information therein. As discussed supra, it is undisputed that “a warrant cannot be used as a general investigatory tool to uncover evidence of a crime. Nor may a warrant be so ambiguous as to allow … the general ‘rummaging’ banned by the Fourth Amendment.” Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1011 (Pa. 2007) (citation omitted). This case, however, is not one where officers were given free rein to look at anything within the phone to generally look for evidence of a crime. See e.g., Orie, supra; Melvin, supra. Instead, the warrant was issued because an unknown user within Appellant’s home was under investigation for an internet-based crime. The warrant only allowed the officers to search for evidence of that particular crime. They could not indiscriminately rummage through any and all files as Appellant suggests, but rather could only conduct a digital forensic search “by a qualified computer expert in a laboratory or other controlled environment” and only for evidence of child pornography. Affidavit of Probable Cause at ¶ 7. We are, as the lower courts were, satisfied that the limiting language provided in the warrant and supported by the affidavit of probable cause was specific enough that rummaging would not be permitted, nor would this warrant be used as a general investigatory tool. Because we find that the warrant sufficiently described the items for which there was probable cause, it was not overbroad.

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