D.Kan.: Standard govt cell phone search protocol violates particularity requirement and results in a general search

And it begins: What is the scope of Riley? When I was interviewed by the NYT last week about Riley, I mentioned that particularity was going to be the next real issue in cell phone searches, but that didn’t end up in the article. The District of Kansas held the day after Riley in a fascinating opinion that the standard search protocol of the government for cell phones provided in the search warrant application violated the particularity requirement of the Fourth Amendment and would result in a general search. In re Premises Known As: a Nextel Cellular Tel. with Redacted Unknown Assigned Tel. No. Belonging to & Seized from [Redacted], 2014 U.S. Dist. LEXIS 88215 (D. Kan. June 26, 2014):

In addition to the places to be searched, the warrant must also describe the things to be seized with sufficient particularity. This is to avoid a “general exploratory rummaging of a person’s belongings,” and was included in the Fourth Amendment as a response to the evils of general warrants.10 First, the description of the things to be seized must be “confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.”11 Second, a warrant must describe the things to be seized with sufficiently precise language so that it informs the officers how to separate the items that are properly subject to seizure from those that are irrelevant.12 Stated another way: “As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”13 Taken together, a warrant is overly broad if it does not contain sufficiently particularized language that creates a nexus between the suspected crime and the things to be seized.14

The Court remains concerned that, in its current form, the government’s Application violates both of these provisions.

B. Applying Constitutional Protections in the Digital Era

Applying the foregoing Fourth Amendment requirements has rapidly evolved over the years in the absence of helpful guidance from the Supreme Court or agreement among the lower courts. Consider the following timeline of the evolution of the Fourth Amendment’s requirements as applied to cases overlapping with the digital realm.

1. The Supreme Court’s View of Cellular Phones

On June 25, 2014, the United States Supreme Court decided Riley v. California.15 This case was principally about the search of a cellular phone incident to lawful arrest. Importantly, the Supreme Court expressly reserved the right to consider the type of search at issue in this case.16 However, the Supreme Court’s discussion of cellular phones and any accompanying government search is generally helpful.

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3. Analysis of the Present Application

The present application is for the search of a cellular phone already lawfully seized.67 As such, this Court adopts Judge Facciola’s view that the applications are viewed as requests for additional warrants to search the phone’s contents.68 Additionally, the Court is persuaded by Riley’s dicta concerning the implications of searching a phone, generally.69 The Court finds that the present search warrant application violates the Fourth Amendment’s probable cause and particularity requirements.

This Court has already denied government search warrants in other digital content contexts, such as email communications.70 There, we stated “[t]o comport with the Fourth Amendment, the warrants must contain sufficient limits or boundaries so that the government-authorized agent reviewing the communications can ascertain which email communications and information the agent is authorized to review.”71 In an effort to comport with this, the government’s application included a search methodology (“Methodology”).72 While certainly helpful, it contains neither sufficient limits nor boundaries. This Methodology suffers from two systemic, fatal issues.73 First, the Methodology, as written, will result in the overseizure of data and indefinite storage of data that it lacks probable cause to seize. Second, the Methodology is so broad that it appears to be nothing more than a “general, exploratory rummaging in a person’s belongings.”74 Thus, the application fails to satisfy the particularity requirement of the Fourth Amendment.