No Missouri case deals with the question of particularity in a cell phone search. One group finds “all data” warrants not particular. Others hold such warrants valid if the crime under investigation is also mentioned. Here it was mentioned to be drug delivery and rape, so the court follows those cases and holds the warrant particular enough. Because the cell phone was in the possession of the police for the eight months before the search warrant was sought, it was not stale. [But what about unreasonableness in general? That’s a significant issue, too.] Defendant’s voluntarily entering his password into the phone to open it for his expert in the presence of law enforcement makes the “foregone conclusion” doctrine apply, and he can’t plead the Fifth Amendment to compulsion of the password. State v. Johnson, 2019 Mo. App. LEXIS 297 (Mar. 5, 2019):
Other cases, however, have held that the particularity requirement in a warrant authorizing the search of all data or all files in a cell phone is met so long as the warrant constrains the search to evidence of a specific crime. See, e.g., United States v. Bishop, 910 F.3d 335, 336-37 (7th Cir. 2018); United States v. Castro, 881 F.3d 961, 965 (6th Cir. 2018); United States v. Bass, 785 F.3d 1043, 1049-50 (6th Cir. 2015); United States v. Zongli Chang, 2018 U.S. Dist. LEXIS 128223, 2018 WL 3640435 at *5 (E.D. Mich. July 31, 2018); United States v. Grinder, 2018 U.S. Dist. LEXIS 104117, 2018 WL 2943235 at *4-5 (D. Md. June 12, 2018); People v. English, 52 Misc. 3d 318, 321, 32 N.Y.S.3d 837 (N.Y. Sup. Ct. 2016). The rationale for holding that such warrants are sufficiently particular and not overbroad is that “[c]riminals don’t advertise where they keep evidence.” Bishop, 910 F.3d at 336. Indeed, “[a] warrant authorizing the search of a house for drugs permits the police to search everywhere in the house, because ‘everywhere’ is where the contraband may be hidden.” Id. at 336-37. Moreover, in the context of electronic devices such as computers and cell phones, “‘criminals can–and often do–hide, mislabel, or manipulate files to conceal criminal activity [such that] a broad, expansive search of the [device] may be required.'” Bass, 785 F.3d at 1049-50 (citations omitted). Because there is no way for law enforcement to know in advance how a suspect may label or code files that contain evidence of criminal activity, “by necessity government efforts to locate particular files will require examining many other files to exclude the possibility that the sought after data are concealed there.” English, 52 Misc. 3d at 321-22. Just as a warrant authorizing a search of a filing cabinet allows the search of every document in the files because the incriminating evidence may be found in any file or folder, so too should a warrant allow the search of every document on a cell phone, which serves the same function as a filing cabinet. Bishop, 910 F.3d at 337 (citing Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976) and Riley, 134 S. Ct. at 2489). Thus, a warrant is sufficiently particular if it “cabins the things being looked for by stating what crime is under investigation.” Id.
We find the reasoning of Bishop, Bass, English, and similar cases persuasive. The warrant in this case constrained the search of Johnson’s phone to evidence of the specific crimes of distribution, delivery, and manufacture of a controlled substance and first-degree rape. The affidavit that was incorporated into the warrant described in detail the offenses that Johnson was suspected of committing and how cell phones could be used in the commission of those offenses. At the time the cell phone was seized, the officers could not have known where such evidence was located in the phone or in what format, such as texts, videos, photos, emails, or applications. Under the circumstances, the scope of the warrant was sufficiently particular and was not overbroad. Bass, 785 F.3d at 1050.
. . .
D. Compulsion of Passcode and Fifth Amendment
. . .
In this case, before the State sought the order compelling Johnson to enter his passcode to unlock the phone so the State’s expert could examine it, the police observed Johnson enter his passcode into the phone and unlock it so that his expert could examine it first. The evidence in the light most favorable to the court’s suppression order shows that, despite Johnson’s current arguments to the contrary, he entered his passcode knowingly and voluntarily in the presence of both defense counsel and law enforcement for the purpose of having his expert examine the phone for exculpatory evidence. This action satisfied the elements of the foregone conclusion exception, because the implicit facts that were conveyed through his act of entering the passcode the second time pursuant to the order to compel — the existence of the passcode, its possession or control by him, and the passcode’s authenticity — were already known to the State and, therefore, were a foregone conclusion. See Andrews, 197 A.3d at 205; Gelfgatt, 11 N.E.3d at 615.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)