The search warrant for defendant’s cell phone was overbroad, essentially permitting a general search of the entirety of information on it. Limiting it to a homicide was of no help. The good faith exception also does not apply. The fact cell phones go to crime scenes alone isn’t enough to search the whole phone. State v. Wilson, 2023 Ga. LEXIS 36 (Feb. 21, 2023):
While the State concedes that the warrant “broadly target[s] the data” in Wilson’s cell phones, the State argues that, when read as a whole, the warrant sufficiently limits the search of the phones to evidence connected with the crimes. We disagree. As the State acknowledges, the search warrant broadly authorizes the seizure of “any and all stored electronic information” on the phones, “including but not limited to” various kinds of electronic information. The State points to the preprinted form language following this sweeping authorization as “limiting” in nature. However, that language clearly states that “[t]he foregoing described property”—that is, “any and all stored electronic information” on the phones—”constitutes evidence connected with the crimes.” This language cannot plausibly be read, as the State suggests, to limit the otherwise limitless authorization to search for and seize any and all data that can be found on Wilson’s cell phones. Indeed, the warrant’s complete absence of limiting language distinguishes it from other warrants we have upheld in prior cases based on the presence of so-called “residual clauses” or other limiting language. Compare Palmer v. State, 310 Ga. 668, 675 (1) (c) (853 SE2d 650) (2021) (search warrant authorizing search and seizure of, among other things, “cell phones (to include all data contained therein) … which are being possessed in violation of Georgia law(s): OCGA § 16-5-1 Murder” was sufficiently particularized when, reading the warrant as a whole and “in a common-sense fashion,” it sufficiently “listed classes of items that, as a practical matter, were likely to be found relevant” to the crimes in the warrant, and it further limited those “classes of items to those relevant to [the crime]” (emphasis supplied)); Westbrook v. State, 308 Ga. 92, 97-98 (3) (a) (839 SE2d 620) (2020) (search warrant for “electronic data” on defendant’s cell phone was sufficiently particularized “to enable a prudent officer to know to look for photographs and videos” because the language of the warrant “limited the scope of the search to evidence pertaining to the commission of the murder” (emphasis supplied)); and Rickman, 309 Ga. at 42 (warrants that included language authorizing officers to search cell phones for “messages, photographs, videos, contacts, and any other application data, or any other evidence of the crime of murder” were sufficiently particularized because the language of the warrants limited the search of the cell phones “to items reasonably appearing to be connected to [the victim’s] murder.” (emphasis supplied)). Because the warrant in this case was not sufficiently particularized, the trial court did not err in concluding that the warrant authorized an impermissible general search of Wilson’s cell phones.
Take the search warrant in this case. As far as I can tell, that warrant allowed the search and seizure of the data from two cell phones on the theory that (1) they were found in the suspect’s van, and (2) criminals commonly use cell phones to talk about crimes. And the scope of the authorized search and seizure looks unlimited: police could search and seize the entire contents of the phones, with no apparent restrictions on the type or category of data or information that could be seized, or on how any of that data or information could be used. A warrant supported by such generic “probable cause” to search someone’s house and seize the entirety of its contents, with no restrictions on their use, would never fly. See, e.g., Bryant v. State, 301 Ga. 617, 619-620 & n.3 (2) (800 SE2d 537) (2017) (warrant that named house and cars to be searched but did not specify items or evidence sought violated particularity requirement); United States v. Travers, 233 F3d 1327, 1330 (11th Cir. 2000) (warrant that authorized seizure of all “material reflecting identity” and “anything reflecting potential fraud” violated particularity requirement); State v. Rothman, 779 P2d 1, 3, 9, 10-11 (Haw. 1989) (holding that warrant that authorized the seizure of all items in a home that related to the defendant’s financials or that tended to show his identity violated particularity requirement and explaining, “If the authorities have only to say ‘I have reason to believe that X has committed a crime based on what Y has told me’ to get authorization to search X’s home for anything and everything X possesses, then no one’s papers or possessions are safe”). Yet I suspect that such warrants for cell-phone data remain all too common, even in Riley’s wake.
Of course, part of the reason for that is Riley itself. Riley’s “get a warrant” holding was more or less a mic drop, and the Court has yet to return for an encore. But in the meantime, people haven’t stopped using cell phones or committing crimes (would that it were so!). And cell-phone technology keeps advancing, adding both to the value of cell phones for law enforcement seeking to combat crime, and to the privacy consequences the Court worried about. The Court may say more someday about just how the Fourth Amendment applies to and limits warrants for cell-phone data, but until then, our courts must grapple with these questions, in light of Riley, ourselves.