KY: Affidavit for the SW limited the breadth of cell phone warrant

While the search warrant for defendant’s cell phone was arguably overbroad and not well drafted, it was limited by the affidavit in support as to the specific things to be sought. Tucker v. Commonwealth, 2020 Ky. App. LEXIS 112 (Oct. 9, 2020):

The search warrant at issue in the instant case is arguably overbroad. Although it particularly describes the cell phone to be searched, it essentially allowed officers to search all the data on Tucker’s cell phone. However, when qualified by the limitations of the officer’s affidavit, the necessary particularization restricts the search to evidence contained in the cell phone’s “phonebook, call history (including received, dialed and missed calls), incoming, outgoing and drafts of text messages, IMEI/ESN/IMSI number, pictures and images, video, audio recordings, ringtones, phone details, memory card and SIM card,” (R. at 94), “which tends to show that a crime has been committed or that a particular person has committed a crime.” (R. at 91.) See Rawls v. Commonwealth, 434 S.W.3d 48, 60 (Ky. 2014) (officer affidavit may be incorporated into a search warrant to meet specificity requirements). The affidavit further limits the scope of the warrant to a search for evidence relating to the string of thefts committed between June 27 and July 7, 2017.

Accordingly, Tucker’s claim that the search warrant contained no reference to a specific crime is a false one. Additionally, the fact that the investigating officers searched data not within the specified time range in which the warrant was based does not in and of itself render it a “general” search. Applegate stands for the proposition that, so long as the officers are searching files “which could reasonably have contained evidence related to [the crime on which the search warrant was based],” they are not exceeding the bounds of the warrant. Applegate, 577 S.W.3d at 91.

We conclude it was reasonable for the officers to search files that predated the crimes which gave rise to the search warrant. The fact that the police suspected the crimes occurred between June 27 and July 7, 2017, does not mean discovered evidence showing “a crime has been committed or that a particular person [could have] committed a crime” in data that pre-dated the crime spree must be suppressed. It is reasonable, for example, that officers would discover evidence of preparation or identification of Tucker’s associates in data pre-dating the actual crimes. And, Tucker had only owned the phone for approximately one month before the crime spree, which necessarily limited the search to a reasonable timeframe.

In conclusion, the search warrant was not overbroad and, therefore, did not lead to a “general” search of Tucker’s cell phone.