Marc Daniel McKee was convicted of four counts of “possession of depictions of a minor engaged in sexually explicit conduct”, commonly known as child pornography. The police had a warrant to seize McKee’s cell phone. He claimed the seizure of child porn on his cell phone was obtained during an illegal search. He filed an appeal to get the evidence from his cell phone suppressed.
McKee lived a colorful life. He hung out with 15 and 16-year-old girls who he supplied with methamphetamine. He used his cell phone to take photographs and record video clips of him engaging in sex with one of the girls.
Things started to go south for McKee when a mother suspected her 16 year old daughter of having sex with him. Her daughter’s age was a complicating factor since 16 is the age of consent. The mother went to McKee’s house, found her daughter, assaulted McKee, and took his cell phone. She found sexually explicit video clips and photographs of her daughter on the cell phone. She went to the police and told a detective about the images. The cell phone was left with the police. The mother later reported McKee was also having sex with another 15-year old girl in exchange for drugs. The police sought and obtained a warrant to search McKee’s cell phone, based on the mother’s information.
McKee was charged with four counts of possession of child porn, commercial sex abuse of the 15-year old, three counts of distribution of meth to a person under 18, plus violating a no contact order. Things were looking grim considering the evidence obtained on the cell phone. However, McKee challenged that evidence. His motion to suppress contended the warrant to search his cell phone was overbroad and did not specify what the police would be looking for. The search thereby violated the Fourth Amendment of the U.S. Constitution, which requires a warrant to “particularly describe the place to be searched, and the persons or things to be searched.”
So what was wrong with the cell phone warrant?
The warrant had broad descriptions of seizing cell phone data, including “images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes and tasks”. It was asking to search for everything and anything. The warrant did not specify that it was looking for evidence of child pornography.
The Washington Court of Appeals agreed with McKee. It reversed the four child porn counts. The warrant did not tailor the justification to search McKee’s cell phone and was not limited to data for which there was probable cause to search. The police had “no objective standard of guidance” on what to seize or look for. The police were not restrained from a fishing expedition. Cell phones, the new domain of this century, are like houses: the police should be restrained and have guidance on what to look for.
Mr. McKee is a very lucky man. The child porography charges were dismissed. Though he probably doesn’t feel like it, as he was convicted on four out of the five remaining counts.