“The government has presented an application for a warrant to search a townhome for evidence of trafficking in counterfeit United States currency. Among the items identified by the government for search and seizure are electronic devices located in the premises. More specifically, the government’s application seeks to seize electronic devices in the premises that are connected to the subject offense or in the possession of the target of the offense. The Court has determined that this limitation on the scope of the seizure of electronic devices is consistent with the Supreme Court’s Fourth Amendment jurisprudence, and in particular, Riley v. California, …, and thus has authorized the warrant. The Court issues this opinion to explain the reasons why it has authorized a warrant with this limitation.” In re Search Warrant Application for the Search of a Townhome Unit, 2020 U.S. Dist. LEXIS 68652 (N.D. Ill. Apr. 20, 2020):
The Court finds that the warrant at issue here is not overbroad because it limits the seizure of electronic devices to those that are linked to the offense or the perpetrator of the offense. First, there is probable cause to seize and search electronic devices because the government’s affidavit included facts demonstrating that the suspect had likely used an electronic device to access a website in order to purchase the counterfeit currency. Second, the government has limited the electronic devices that it can search and seize, and thus the enhanced privacy considerations discussed in Riley are satisfied. Specifically, the warrant authorizes seizure of electronic devices that are “reasonably believed to be possessed or used by [the suspect] or linked to the Subject Offenses[.]” As discussed above, this is a reasonable limitation on the scope of the warrant because the search and seizure is directly tied to the offense or its perpetrator. See Riley, 573 U.S. at 381 (“As the text of [the Fourth Amendment] makes clear, the ultimate touchstone of the Fourth Amendment is reasonableness.”) (internal quotations omitted); see Matter of Residence in Oakland, California, 354 F. Supp. 3d 1010, 1014 (N.D. Cal. 2019) (search warrant for electronic devices must be limited to “devices reasonably believed by law enforcement to be owned or controlled by the two suspects identified in the affidavit”). Once seized, law enforcement can then search the contents of those electronic devices for data related to the offense and specifically identified in Attachment B of the warrant. These items identified in Attachment B include documents, receipts, notes, ledgers, photographs, and other records relating to counterfeit currency. Under this formulation, law enforcement cannot remove and search every electronic device found in the premises.
As the Supreme Court recognized, “[a]s technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Carpenter, 138 S.Ct at 2214 (internal quotation marks and citations omitted). For the reasons stated above, the search and seizure of all electronic devices, which include cell phones, as a result of its mere presence inside a premises to be searched is no longer permissible post-Riley. The limitation on electronic device seizures in this warrant, however, protects the privacy interests of unrelated parties to the offense, ensures that the warrant satisfies the particularity requirement of the Fourth Amendment, and that the seizure is supported by probable cause. See Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (“This particularity requirement protects person against the government’s indiscriminate rummaging through their property.”).
This is not to say that the government can never demonstrate that a seizure of all electronic devices is warranted. Situations, such as when the perpetrator of the offense lives alone or when probable cause demonstrates that all individuals in a premises were involved in an offense, could support a broader warrant for the seizure of all electronic devices. See, e.g., United States v. Taylor, 2019 U.S. Dist. LEXIS 10285, 2019 WL 281547 at*8 (N.D. Cal. Jan 22, 2019) (warrant provided probable cause that both defendant and his wife were involved in tax fraud, and thus warrant for seizure of electronic devices was not overbroad). Like any warrant application, the government must provide specific probable cause to support a search and seizure for the items it seeks. The Court recognizes that there are challenges for law enforcement in identifying the specific devices within a residence that are connected to the offense or its perpetrator. However, these challenges can be overcome by law enforcement through the use of additional investigative techniques, such as pre-search surveillance focused on the devices used in the crime, dialing known phone numbers of the perpetrators while in the premises, or voluntary interviews of individuals present in the residence at the time of the search. And once the electronic devices subject to the warrant are seized, law enforcement is permitted to search the entirety of the device for evidence of the crime as described in the warrant. United States v. Bishop, 910 F.3d 335, 337 (7th Cir. 2018).
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)