Recently, the Court of Appeals decided two companion cases, Moats vs. State, 2017WL63764567, No. 89, September Term, 2016 and Stevenson vs. State, 2017WL3765549, No. 92, September Term, 2016; both of which considered the type of information necessary to supply probable cause for the issuance of a warrant to search a cell phone.
Moats v. State
In Moats vs. State, the Court of Appeals affirmed the Court of Special Appeals’ holding that the warrant was supported by probable cause.
Moats and three other teenagers had been riding in Moats’ car through parts of Garrett County. During the ride Moats provided marijuana and a pill containing Suboxone to the three passengers. That evening, the four teenagers arrived at a party where it was later alleged that one of the members of the group was sexually assaulted.
When Moats was interviewed, he denied any involvement in the sexual assault but acknowledged that he and others had used drugs. The police obtained a warrant and arrested Moats on drug related charges. When he was transported to the jail he was searched and his cell phone was seized from his person. Days after Moats’ release the police prepared an application and affidavit for a warrant to search Moats’ cell phone including Moats’ admission to distribution of Suboxone and marijuana. The affidavit also stated that:
Your affiant knows through his training and experience as a criminal investigator that individuals who participate in such crimes communicate via cellular telephones, via text messages, calls, emails, etc.
Your affiant avers based upon the information received from the aforementioned sources, your affiant’s observations, training knowledge and expertise as a member of the Garrett County Sheriff’s Office, Criminal Investigation Division, that there is probable cause to believe, and does believe, that evidence of violations of the laws relating to sexual offense and related crimes, as well as the possession and distribution of controlled dangerous substances as herein before sited, is contained in and upon the aforementioned cellular telephone.
The affidavit further detailed the affiant’s training and experience as a 17 year veteran of the Sheriff’s Office including work in the investigation of controlled substances offenses.
The search warrant was issued and a forensic investigation of the seized cell phone was conducted in which investigators discovered sexually explicit photographs and a video of a young female, later determined to be Moats’ girlfriend, who was 15 years old at the time the images were created. Moats was 18 at the time the photographs and video were taken, and was subsequently charged with child pornography and second degree assault.
Moats filed a motion to suppress the evidence seized as a result of the forensic search of the cell phone asserting that the affidavit in support of the warrant did not set forth probable cause to establish a “nexus” between those crimes and the contents of his cell phone. The trial court ruled that the warrant was supported by probable cause.
Upon review by the Court of Special Appeals, that Court held that the affidavit permitted a reasonable inference that Moats had engaged in drug related activity and was involved in a sexual assault and that the affidavit supported a similarly reasonable inference that evidence of one or the other of those alleged offenses would be found on the cell phone, thus establishing a substantial basis for the issuance of the search warrant. The Court further held that even if there was not a substantial basis for the issuance of the search warrant, the record established that the officer acted in good faith in preparing the affidavit and obtaining the warrant and therefore the evidence would not be suppressed under the good faith doctrine established in United States vs. Leon, 468 US 897 (1984).
The Court of Appeals framed the question before it as “Does an individual’s suspected involvement in a crime and a police officer’s belief that a cell phone could be used in that crime, without more, constitute probable cause to seize and search that individual’s cell phone?” The Court of Appeals answered “yes.”
The Court of Appeals said that direct evidence linking the crime and the cell phone has never been required by the Fourth Amendment. Rather, a reasonable inference that the evidence sought could be found in the place to be searched is all that is required. Notably, the Court of Appeals found that the issuing judge may consider the expertise and experience of the police officer in assessing what is to be made of facts that a lay person may consider insignificant or irrelevant.
The Court of Appeals indicated that it would be considering the information in the affidavit through the “prism of the substantial basis test” which demands that the Court give great deference to the decision of the judge who issued the warrant. Further, “some deference is also to be given to [the affiant’s] knowledge gained through his training and experience that persons use cell phones to communicate and that evidence of the crimes being investigated, and any related crimes, would be found on Petitioner’s cell phone.”
While the Court of Appeals concluded that the warrant issuing judge had a substantial basis for issuing the warrant to search Moats’ cell phone, it also provided “some final observations.” The Court warned reviewing judges to recognize that “[n]ot every affidavit will (or should) result in issuance of a warrant to search a cell phone.” The Court provided a few examples in which the nature of the crime will not support a warrant to search a suspect’s cell phone such as traffic offenses, public nuisance crimes, and the like. Even in cases where there is a connection between the suspected crime and the cell phone, the Court warned that a lack of factual detail or other circumstances might countenance against a finding of probable cause, such as a deficiency in the affiant’s professed training and experience.
The Court of Appeals noted that the reviewing judge will necessarily consider three factors: (1) the nature of the crime being investigated; (2) the facts provided in support of the connection between that crime and the cell phone to be search; and (3) the degree to which the deference owed to the affiant adds to the ultimate decision (depending upon the affiant’s demonstrated training and experience).
The warrant issuing judge will ultimately have to determine whether in its totality the affidavit sets forth a fair probability that the information will be found in the cell phone to be searched.
The concurring opinion by Judge Adkins, joined in by Judge Greene, concurs in the Majority’s decision on the basis of the good faith doctrine set forth in Leon. The concurrence notes that it is “troubled” by the implication of the Majority’s opinion regarding probable cause and the lack of particularity in the search warrant. It cautioned that the Court should not condone a warrant authorizing police to search the entirety of a cell phone absent any temporal limitation on the information to be searched.
In Moats, there was no date range for the data to be searched, and Judge Adkins stated that he would not find probable cause where a warrant application is based only on an officer’s training and experience, but fails to show any nexus between a phone and criminal activity.
Stevenson v. State
In Stevenson vs. State, the companion case to Moats vs. State, the issue focused on whether a search of a cell phone initially seized by the police incident to Stevenson’s arrest was conducted in reliance on a properly issued search warrant. The Court of Appeals held that the warrant’s affidavit supplied a substantial basis for the judge who issued the warrant to find probable cause to issue the search warrant but also noted that even if the affidavit did not provide a substantial basis to find probable cause, the Leon good faith exception to the exclusionary rule would save the warrant based search.
Stevenson was arrested for assault and robbery of a person who had sustained serious and life threatening injuries. When Stevenson was arrested, Stevenson was wearing the victim’s sandals, possessed the victim’s wallet, and admitted to assaulting the victim. Stevenson’s cell phone was seized from him.
On the day after Stevenson’s arrest, a police officer sought and received a warrant to search Stevenson’s cell phone for evidence pertaining to the assault and robbery. The warrant recounted the items found on Stevenson at the time of his arrest and his confession. The affidavit further stated:
It is through my knowledge and experience that suspects in robberies and assaults will sometimes take pictures, videos and send messages about their criminal activity on their cell phones. I am wishing to search this phone to attempt to recover any evidence of the robbery and assault of [the victim] which may be stored on the phone of Timothy Lamar Stevenson, Jr.
Attached to the affidavit was a document outlining the affiant’s training and experience as a police officer since 2002.
The warrant authorized the police to search “[e]lectronic communications information” stored on the cell phone “from 1600 hours on 22 July 2015 to 1000hrs on 23 July 2015.” Six photographs of the victim lying on the ground in blood, with his pants around his ankles, appearing to have been beaten were located on the phone.
After the issuance of the first warrant, a second affidavit and application were prepared to search Stevenson’s phone. The language of the affidavit and application were identical to the first affidavit except the second application sought “[a]ny and all information, including but not limited to all pictures, movies, electronic communications in the form of text, numeric, and voice messages, detailed phone records to include all incoming/outgoing calls and Facebook messages contained within the phone.” The second affidavit did not mention the existence of the first warrant or the results of the search (the photographs). A different judge reviewed the warrant application and authorized the warrant.
While executing the second warrant the police downloaded the cellphone data and obtained the same six photographs of the victim lying on the ground covered in blood.
The arguments made at the trial level and on appeal relate to the issuance of the second warrant.
The Stevenson opinion addressed the following questions:
1. Can an affiant’s general claim that suspects sometimes have evidence of crimes on their cell phones alone provide the requisite nexus between the crime alleged and the phone to be searched to support the issuance of the search warrant?
2. Did the trial court err in denying Stevenson’s motion to suppress the fruits of a search conducted pursuant to a warrant issued for his cell phone when there was no substantial basis to find probable cause because the warrant application lacked any nexus between the alleged criminal activity and the cell phone to be searched beyond the officer affiants generalized statement that, in his experience, “suspects in robberies and assaults will sometimes take pictures, videos and send messages about their criminal activities on their cellular phones?
3. Does the good faith exception to the exclusionary rule apply where a search warrant for a cell phone is issued on the basis of the affiant officer’s statement that, in his experience, suspects in robberies and assaults “sometimes” have pictures, videos or messages about the crime in their cell phones, and the warrant application fails to allege any nexus between the crimes and the phone, any potential communication with coconspirators, or the commission of a crime that requires communication with third parties?
Stevenson argued that no reasonable officer would have reasonable grounds to believe that the warrant was properly issued, given that the affidavit relied upon the notion that people who commit crimes “sometimes” have evidence of such crimes on their cell phones.
The Court of Appeals found that in the context in which the statement was made in the affidavit, “we suspect that the detective intended ‘sometimes’ to indicate that the frequency of discovering such evidence on cell phones is more than ‘rarely’ and less than ‘more often than not.'”
The Court of Appeals upheld the search warrant, giving “due weight” to the detailed description of the historical facts that supported the warrant, the sworn declaration by the affiant that based on his knowledge and experience suspects in robberies and assaults will “sometimes” have information about the criminal activity on their cell phone, the limitation in the affidavit to information “stored” on the phone for a finite window of time when the assault occurred, and the Supreme Court’s recognition that the degree of detail of one’s daily life is often contained in a cell phone. See Riley v. California, 134 S. Ct. 2473, 2490 (2014) (Recognizing that “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.”).
The Court of Appeals found that the photographs, in any event, fall within the Leon good faith exception to the exclusionary rule.
As in Moats, Judge Adkins filed a concurring opinion in Stevenson, joined in by Judge Greene, in which Judge Adkins made clear that he only concurred in the opinion because he believed the good faith exception rescued the search warrant.
Judge Adkins expressed the “fear that the Majority has paved the way for law enforcement to search a cell phone without a nexus between the criminal activity and the phone to be searched” and warned that Riley v. California, a decision protecting the privacy interests of individuals and their phones, should not be applied “to prop up a warrant based almost exclusively on the police officer’s training and expertise – rather than facts.”
Relying on Agurs v. State, 415 Md. 62, 84 (2010), in which the Court of Appeals said that there must be a “nexus between criminal activity and the place to be searched,” Judge Adkins then criticized the Majority in Moats and Stevenson for “fail[ing] to offer an explanation for why these facts provide a sufficient nexus between the crimes and the likelihood that evidence would be found on the arrestees’ phones.”
Judge Adkins continued that:
Neither of the affiants provided an articulable reason to believe that either arrestee had used his phone in the commission of the crime, or had evidence of the crime on his phone. The affiants relied only on their general experience that individuals who commit these crimes communicate by cell phone through text messages, calls and emails. The affiants’ experience absent any factual basis to support the inference that the arrestees’ cell phones were connected to the crimes, cannot suffice as probable cause.
Judge Adkins did not believe that “[a]n officer’s training and experience can substitute for an ‘evidentiary nexus’ between the place to be searched and the criminal activity suspected.” He warned that the Majority allows the reliance of the “training and experience” opinion that criminals tend to use phones to support the issuance of a warrant even where the crime at issue is unconnected to the use of a cell phone.
Judge Adkins pointed out that the Riley Court considered cell phones to be as worthy of protection as homes, and for that reason suggested that Maryland Courts should look to Maryland precedent addressing warrants to search a suspect’s home when dealing with issues related to the search of cell phones.
Judge Adkins refers us to three Maryland cases that address the nexus issue: Agurs, Holmes, and Coley.
In Agurs v. State, 415 Md. 62, 93 (2010), Agurs had no convictions within five years of the search, and no CDS-related convictions within 15 years. Even though a confidential informant who identified Agurs as a distributor of cocaine, had a history of reliability, the affidavit barely articulated any basis of personal knowledge upon which the informant could claim that Agurs was involved in cocaine distribution. Thus, there was no reasonable nexus that drugs would be found in Agurs’ home. While officers may draw reasonable inferences that evidence may be found in a location, “there must be facts shown from which this reasonable inference can be drawn.” Id. at 87. There is no rule that probable cause to search a home exists because drug dealers tend to keep drugs in their home. “[A] suspect’s home cannot be searched unless there are facts supporting a reasonable inference that contraband might be found there.” Id. at 87 (citing Holmes v. State, 368 Md. 506, 523 (2002)). Likewise, the Court of Special Appeals reiterated that requirement in State v. Coley, 145 Md. App. 502, 526-527, n. 18 (2002), explaining that “Maryland…has explicitly rejected th[e] notion” that there is probable cause to believe that drug dealers will keep contraband and records of transactions in their homes.
Judge Adkins’ references to Agurs, Holmes, and Coley underscore his position that if the Court has not adopted a rule that probable cause to search a home exists because drug dealers tend to keep drugs in their homes, then the Court should not adopt a rule that translates that rationale to cell phones.
Riley v. California – A time to review
Riley analyzes many of the privacy interests that are implicated in cell phone searches. It is worth reviewing the comments and concerns discussed in Riley (many of which we pulled from Riley in a verbatim fasion). See, 134 S.Ct at 2489-91.
For starters, the Supreme Court found that cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand since many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J.L. & Pub. Pol’y 403, 404-405 (2013). Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read-nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk.
The possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. Cell phones couple that capacity with the ability to store many different types of information. Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. The gulf between physical practicability and digital capacity will only continue to widen in the future.
The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information-an address, a note, a prescription, a bank statement, a video-that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone. Finally, there 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. Today 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. Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.
Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns-perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.
In 1926, Learned Hand observed that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.
In Moats and Stevenson the Court of Appeals decided to afford deference to the opinion of a search warrant affiant regarding the likelihood of evidence of a crime being contained in the data of a cell phone, and to the search warrant issuing judge’s reliance upon such opinion. Experience has shown that police officers have historically relied upon “boilerplate” language and testimony regarding their “training and experience” to support a variety of decisions that implicate Fourth Amendment concerns. When that occurs in a courtroom with the witness on the stand and under oath such opinions can be tested by cross-examination. But opinion statements in a search warrant affidavit are largely immune from such examination and generally stand unchallenged. To go behind the four corners of a search warrant and challenge the “opinion” statements is a very difficult, and mostly impossible, task. Franks v. Delaware, 78 S.Ct. 2674 (1078); Holland v. State, 154 Md. 351, 389 (2003).
One with a privacy interest in a cell phone is not permitted to be a party to the judge’s decision to permit the invasion of the cell phone owner’s life as may be documented in his or her cell phone. Once the police officer “opines” and the issuing judge “defers” and the reviewing judge applies “good faith,” defense counsel may feel like no more than a “potted plant” with respect to Fourth Amendment challenges.
Now more than ever, the warrant issuing judge has great responsibility to be sensitive to the cautions in Moats and Stevenson. The warrant issuing judge must carefully scrutinize an affiant’s opinion and the basis for such opinion, requiring both particularity and limitations with respect to the scope of any authorized search. That scrutiny must not only be focused on probable cause and nexus issues, but also on execution issues. An issuing judge should demand that the search warrant affidavit specifically describe how the warrant will be executed, describing the technology and software that will be used to execute the search. If the affiant can’t convince the issuing judge that the particularity requirements and other limitations can be complied with by the manner in which the search will be executed, then the search will be constitutionally overbroad and, it is submitted, that the application for a search warrant should be denied.
Lack of this scrutiny will eviscerate the protections to which each of us is entitled by the United States Constitution and the Maryland Declaration of Rights.