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Some computer searches may be unconstitutional

In today’s electronic world, law enforcement officials investigating crimes often seek warrants to search and seize electronic devices that they believe contain incriminating evidence. However, people also store highly personal information on their electronic devices, from memories to entire conversations. Most of this electronically stored information is often irrelevant to the crimes being investigated, but law enforcement generally wants to comb through this information in their search for evidence. Because the Fourth Amendment prohibits the government from conducting unreasonable searches and seizures, these “computer warrant cases” create tension between the interests of law enforcement and individual privacy rights.

What must officers show a court to justify a search warrant authorizing them to seize a suspect’s electronic storage devices? And, once seized, what limits officers from conducting unduly invasive searches of the content on those devices? Last month, the D.C. Circuit Court of Appeals attempted to answer these questions and clarify the scope of search warrants for electronic storage devices. In United States v. Griffith, the court held that valid warrants for the search and seizure of electronic storage devices: 1) must be grounded in probable cause that the suspect owns electronic devices that may contain relevant evidence, and 2) cannot be unconstitutionally overbroad in their scope. By requiring sufficiently clear and specific search warrants for electronic storage devices, law enforcement officials are deterred from using search warrants to go on fishing expeditions that may invade an individual’s privacy rights.

The Griffith case is an unconventional “computer warrant case” because the underlying charges involve neither electronic devices nor the alleged crime that initially justified the search warrant. The case started when law enforcement officers, investigating Mr. Griffith for participating in a homicide, sought a search warrant of Mr. Griffith’s residence. The officer’s affidavit in support of the warrant relied on the apparent fact that parties to a crime “maintain regular contact with each other… through cell phones and other electronic communication devices and the Internet…” Once the warrant was granted, the officers went to the apartment where Mr. Griffith was residing. When they arrived and announced their intention to search the apartment, Mr. Griffith threw a gun out of the window. Though police seized six cell phones and a computer tablet, it was the seizure of the discarded gun that became the focal point of Mr. Griffith’s case. Rather than the homicide that justified the initial search warrant, Mr. Griffith was charged with possession of a firearm by a convicted felon. At trial, Mr. Griffith moved to suppress the gun as evidence, arguing that the warrant authorizing police to search and seize all electronic devices on the premise was invalid on its face. Therefore, since the police only had authority to seize the gun because of the warrant, Mr. Griffith asserted that the gun was the “fruit” of an unlawful search and seizure. The trial court denied Mr. Griffith’s motion, and he was convicted.

On appeal, the D.C. court vacated Mr. Griffith’s conviction because the search warrant authorizing officers to seize the discarded firearm lacked probable cause and was unconstitutionally overbroad. In finding a lack of probable cause, the court’s reasoning was simple— “the affidavit supporting the warrant application provided virtually no reason to suspect that Griffith in fact owned a cell phone, let alone that any phone belonging to him and containing incriminating information would be found in the residence.” In fact, the affidavit did not assert that Mr. Griffith used one. Couched in generalities about how criminals communicate with each other, the affidavit supporting the warrant stood for little more than a guess that Mr. Griffith owned electronic devices, and a hope that those devices contained incriminating evidence linking him to the homicide. The assertion that “gang members maintain regular contact with each other… through cell phones and other electronic communications devices” does not alone provide probable cause without a particularized showing that certain devices contain incriminating evidence. As the D.C. Circuit noted, it is not enough for a judge to assume someone owns an electronic device when issuing a search warrant, just as it is inappropriate for a judge to assume there will be incriminating evidence on that device. The D.C. Circuit’s holding in Griffith signals that future affidavits for the search and seizure of electronic devices must demonstrate probable cause that electronically stored evidence in a particular case actually exist, that they are owned or used by the suspect of an investigation, and that “the evidence is likely to be found at the place to be searched.”

In addition to finding that the warrant lacked probable cause, the D.C. Circuit held the warrant was unconstitutionally overbroad. The Fourth Amendment requires that search warrants describe the “things to be seized” with particularity or specificity. The warrant in Griffith authorized the officers to seize all electronic devices found in the residence, regardless of whether Mr. Griffith owned the devices, used them, or whether the devices had any relevance to the homicide investigation. Related to the requirement that warrants be based on probable cause, the wording of a warrant cannot authorize an unlimited sweep of an individual’s property or person.  Just as law enforcement officers seeking a warrant must show probable cause that the electronic devices sought through a search warrant are relevant to their investigations, so must a search warrant be limited to those electronic devices. This constitutional protection exists to prohibit law enforcement from drawing themselves blank checks for searches and seizures.

Not only did the affidavit in Griffith lack probable cause that Mr. Griffith had a phone in the residence containing incriminating evidence, but the terms of the warrant itself authorized the seizure of all electronic devices in the apartment, regardless of ownership or connection to the investigation. Such a broad authorization to seize electronic devices is only permissible when a “reasonable investigation” by law enforcement officers fails to provide a sufficiently particular description of the objects of the search. In those cases, law enforcement may be authorized to seize such property long enough to determine whether the property is relevant to the investigation. Here, however, law enforcement originally sought the warrant to confiscate Mr. Griffith’s electronic devices, which they believed would yield relevant evidence. The officers had no reason to know that there were other devices on the premise that did not belong to Mr. Griffith, let alone that such devices might be relevant to the investigation against Mr. Griffith. Still, law enforcement seized devices belonging to others besides Mr. Griffith, including those of his girlfriend who leased the apartment and was not a suspect in the homicide investigation. The terms of the warrant gave officers “unfettered access to any electronic device in the apartment even if police knew the device belonged to someone other than Griffith.” By authorizing this overreach by the officers, the search warrant was invalid on its face.

The implications from this ruling could be huge. First, the court’s holding that the warrant lacked probable cause to seize Mr. Griffith’s devices signals that possessing an electronic device, and the mere possibility that it has been used in furtherance of a crime, does not alone justify a search warrant for law enforcement to seize the device. Individuals should know their rights, including the Fourth Amendment right that “no Warrants shall issue, but upon probable cause.” Second, search warrants must not be “overbroad,” meaning their scope must be specifically defined, and limited to objects of criminal investigations. Griffith is especially important for the future development of “computer warrant cases” because our electronic devices, and the information stored on them, generally merit more constitutional protection than other forms of property we own. In that sense, the D.C. Circuit reinforced that principle. Courts issuing warrants are allowed more flexibility in authorizing searches for contraband in a residence. “Innocuous objects” like cell phones and other electronic storage devices, especially in the home, receive added protection from “unwarranted intrusions upon privacy.” The court found the search warrant for Mr. Griffith’s residence to be especially offensive because it broadly authorized the seizure of otherwise lawful objects that had no apparent connection to the investigation.

The lessons from the Griffith case, if the case is upheld, are that law enforcement do not have the unlimited power to search every inch of our apartments, or every megabyte of our electronic devices, just because they have a warrant. When law enforcement seeks to obtain your electronic storage devices, the burden is on them to provide probable cause that you own or use such a device and that the particular device has information relevant to the investigation.

Our firm has been extraordinarily successful in suppressing evidence obtained by the police after an unconstitutional search. In one case, our motion to suppress evidence obtained after an unlawful search of our client’s cellphone led to a dismissal of serious criminal charges against our client. The judge’s decision in our client’s favor was upheld on appeal.

If you think you could be caught up in a criminal case based on a questionable search of a computer or other electronic device, feel free to give us a call. We may be able to help.