W.D.Tenn.: Search warrant for cell phone was exceeded when picture files were reviewed

A 16 year old runaway was riding with defendant and she told the police that she had oral sex with defendant which he recorded on his telephone. A search warrant for the phone was obtained, but the officer exceeded the scope of the warrant by looking for picture files and not just the video. Significantly, the court also held that the government’s preferred justification for obtaining 404(b) evidence was rejected under the terms of this warrant. United States v. Labuda, 2011 U.S. Dist. LEXIS 154700 (W.D. Tenn. October 13, 2011):

Finally, while the United States argues that the scope may have been justified to locate material “evidence of intent, plan, motive or common scheme” in accordance with Rule 404(b) of the Federal Rules of Evidence, the fact remains that the scope of the authority to search Defendant’s cellular phone was based upon the authority granted in the Search Warrant. The Affidavit recited the victim’s account that the alleged sexual assault occurred during a brief time period and did not indicate that there was any lengthy span of time during which investigators believed that Defendant corresponded, schemed, or planned the sexual assault. It was the substance of the Affidavit that the issuing judge relied upon to grant the authority to execute the search. Thus, the Court finds that any attempt of investigators to search for evidence not reasonably related to the time frame provided by the victim, no matter whether it may or may not be admissible under the Federal Rules of Evidence, was beyond the scope of the Search Warrant.

Ultimately, although Detective Campbell did prudently narrow his search in ways that were not required by the warrant, specifically by not viewing any files other than videos, that does not negate the fact that he also improperly broadened his search to include dates and times that the record reflects he had no reasonable basis to believe that Defendant may have been engaged in or recording sexual offenses relating to the sixteen-year-old victim about whom the Search Warrant was issued. Accordingly, the Court finds that Detective Campbell exceeded the scope of the Search Warrant in his seizure of evidence that had no temporal proximity to the sexual assault of the sixteen-year-old victim.