This cell phone search warrant completely failed the particularity requirement, and the good faith exception did not apply. Cell phone searches are intrusive, and warrants must be particular. People v. Carson, 2024 Mich. App. LEXIS 1235 (Feb. 15, 2024):
In this case, the warrant itself described the “person, place, or thing to be searched” as the “[c]ellular device belonging to [defendant] and seized from his person upon arrest.” The property to be searched for and seized was described as follows:
Any and all records or documents pertaining to the investigation of Larceny in a Building and Safe Breaking. As used above, the term records or documents includes records or documents which were created, modified or stored in electronic or magnetic form and any data, image, or information that is capable of being read or interpreted by a computer. In order to search for such items, searching agents may seize and search the following: cellular devices; Any [sic] physical keys, encryption devices and similar physical items that are necessary to gain access to the cellular device to be searched or are necessary to gain access to the programs, data, applications and information contained on the cellular device(s) to be searched; Any [sic] passwords, password files, test keys, encryption codes or other computer codes necessary to access the cellular devices, applications and software to be searched or to convert any data, file or information on the cellular device into a readable form; This [sic] shall include thumb print and facial recognition and or digital PIN passwords, electronically stored communications or messages, including any of the items to be found in electronic mail ("e-mail"). Any and all data including text messages, text/picture messages, pictures and videos, address book, any data on the SIM card if applicable, and all records or documents which were created, modified, or stored in electronic or magnetic form and any data, image, or information that is capable of being read or interpreted by a cellular phone or a computer.Simply put, this was a general warrant that gave the police license to search everything on defendant’s cell phone in the hopes of finding anything, but nothing in particular, that could help with the investigation. This warrant did not place any limitations on the permissible scope of the search of defendant’s phone. The only hint of specificity was the opening reference to “the investigation of Larceny in a Building and Safe Breaking,” but this small guardrail was negated by the ensuing instruction to search for such items by searching and seizing the entirety of the phone’s contents.
The evidence clearly established that there was probable cause to believe that defendant and DeGroff collaborated to break into Billings’s safe and steal its contents, which included his entire life’s savings. Given the nature of defendant’s and DeGroff’s relationship, there was likewise probable cause to believe that defendant had used his phone to communicate with DeGroff regarding these crimes. Therefore, it would have been wholly appropriate to issue a warrant authorizing the police to engage in a search of the phone’s contents limited in scope to correspondence between these two regarding the crimes; this would include SMS messages, internet-based messaging applications such as Messenger or SnapChat, direct messages sent through social media platforms such as Instagram or Twitter, emails, and other similar applications. The warrant that was actually issued placed no limitations on the scope of the search and authorized the police to search everything, specifically mentioning photographs and videos. Authorization for a search of defendant’s photographs and videos, despite there being no evidence suggesting that these files would yield anything relevant, is particularly troubling in light of the tendency of people in our modern world to store compromising photographs and videos of themselves with romantic partners on their mobile devices. Moreover, people usually can directly access file storage systems such as Dropbox and Google Drive directly from their phones, creating a whole new realm of personal information that the police was given free license to peruse. The pandemic also saw the emergence of applications such as “BetterHelp” and “Talkspace” through which people can have text message-based sessions with their psychotherapists, and applications such as “MyChart” allow mobile storage of detailed medical records as well as private conversations between patients and doctors. Simply put, this warrant authorized precisely the form of “wide-ranging exploratory searches the framers intended to prohibit.” Hughes, 506 Mich at 539 (quotation marks and citation omitted). Indeed, there are likely many people who would view an unfettered search of the contents of their mobile device as more deeply violative of their privacy than the sort of general search of a home that the framers originally intended to avoid.
We are living in a time during which it can be reasonably assumed that any given person essentially has their entire life accessible from their phones. The United States Supreme Court commented on this fact when it decided Riley:
[T]here is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. … A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. [Riley, 573 U.S. at 395 (citations omitted).]
Thus, warrants for searching and seizing the contents of a modern cell phone must be carefully limited in scope. This is not to say that the police must be told precisely what they are looking for or where to find it, but there must be guardrails in place. The warrant in this case authorized the modern equivalent of the police combing through a person’s entire home in search of any evidence that might somehow implicate the person in the crime for which they were a suspect.
We are aware of no binding authority discussing the analysis of whether the language of a warrant authoring a search of cell phone data comports with the particularity requirement; however, several other states have likewise concluded that it is inappropriate for a warrant to authorize an unfettered search of a phone’s entire contents. For example, in State v Smith, 344 Conn 229, 250-252; 278 A3d 481 (2022), the Connecticut Supreme Court concluded that a warrant “which allowed for a search of the entire contents of the cell phone” was invalid “because it did not sufficiently limit the search of the contents of the cell phone by description of the areas within the cell phone to be searched, or by a time frame reasonably related to the crimes.” In State v Bock, 310 Or App 329, 335; 485 P3d 931 (2021), the Oregon Court or Appeals concluded that a “warrant that authorizes seizure of any item on a cell phone that might later serve” as evidence of a crime “is tantamount to a general warrant.” Additionally, in People v Coke, 461 P3d 508, 516 (Colo 2020), Colorado’s Supreme Court invalidated a search warrant that allowed police “to search all texts, videos, pictures, contact lists, phone records, and any data that showed ownership or possession.” Numerous other examples establish that many states have joined in our conclusion that the particularity requirement disallows the issuance of warrants authorizing police to search the entirety of a person’s cell phone contents for evidence of a particular crime; the massive scale of the personal information people store on their mobile devices means that there must be some limits to the scope of the search. See, e.g., Richardson v State, 481 Md 423, 468; 282 A3d 98 (Md Ct App 2022) (“While reasonable minds may differ at times on whether a warrant is sufficiently particular, one thing is clear: given the privacy interests at stake, it is not reasonable for an issuing judge to approve a warrant that simply authorizes police officers to search everything on a cell phone.”); State v Wilson, 315 Ga 613, 615; 884 SE2d 298 (2023) (invalidating warrant that provided a “limitless authorization to search for and seize any and all data that can be found on [the defendant’s] cell phones”).
For these reasons, we conclude that the search warrant in this case did not satisfy the particularity requirement.
