When it comes to sex crimes, often evidence of the crime can be found “on” or “in” a suspect’s cell phone. In particular, crimes involving child pornography are often found on a cell phone. Police usually get tipped to child pornography by other police agencies, such as Interpol or U.S. Homeland Security. Usually when police swoop in with a warrant, they go to the location where images were transferred, i.e. the physical location where the home personal computer is located. Search warrants normally cover other means of digital storage such as ‘thumb drives,’ but often do not cover cell phones. My clients have had cell phones confiscated in raids, although there was no mention of the cell phone in the warrant. Therefore, a recent case out of Boston is important concerning police access to a person’s cell phone browser.
In Commonwealth v. White, a Boston detective investigating an armed robbery and shooting (which later became a homicide) went to Mr. White’s high school. The detective had information that Mr. White was one of three likely perpetrators in the shooting. A school administrator was holding Mr. White’s cell phone, pursuant to school policy concerning tardiness. The detective, not wanting Mr. White to destroy any evidence, seized the phone without a warrant.
The detective had no information that Mr. White’s cell phone was used during the crime, or contained any evidence.
The detective was aware that cell phones are often used in crimes involving multiple perpetrators. 68 days later, the police sought a search warrant for the cell phone on the basis of information gained after it was seized. There was relevant information gained from the phone, which Mr. White later moved to dismiss because the seizure was not supported by probable cause. A trial judge agreed, and suppressed all information gained from the forensic examination. The government appealed.
On appeal, the State of Massachusetts (i.e. the “Commonwealth”) had to overcome more than one issue under the U.S. constitution and the Massachusetts Declaration of Rights. Similar federal and state constitutional analysis would occur under appellate review here in Washington.
Initially, the Massachusetts’ appellate court concluded that the police could not seize Mr. White’s cell phone based solely on an officer’s opinion that “the device is likely to contain evidence of the crime under investigation.” 59 N.E. 369, 372 (2016). This language could be helpful in cases wherein alleged contraband are suspected to be on the suspect’s phone. The Massachusetts’ appellate court separately concluded that the Commonwealth had not met its burden of demonstrating that the delay of 68 days between the detective’s seizure and application for a search warrant was reasonable. The suppression of the cell contents was upheld.
I think that everyone now knows that cell phones are as an effective means of transferring or receiving digital data as a home PC. Many people have stopped relying on a home computer because they can do the same functions on their cell phones from virtually anywhere. Seizure of a cell phone appears justified because it is a common receptacle for digital storage. No one can reasonably dispute such storage may include digital imagery.
If the warrant does not cover such seizure, then the concept of exigent circumstances does, as an exception to the requirement for a search warrant. To support exigent circumstances, the search still has to be supported by probable cause. With child pornography, the nature of the crime itself supports that a suspect more likely than not used his cell phone to retain or transfer images. The exigent circumstances making a warrant impracticable is: if the seizure is not allowed, then the suspect will likely remove or erase the digital images.
In this case, there wasn’t any connection between the cell phone and the robbery/shooting. The police waited too long to get a warrant. The warrant was only obtained after someone tipped the police that evidence of another robbery by the suspect was on the phone. I am convinced that police will simply seize cell phones when involved with child pornography cases, prostitution or sex trafficking cases. While U.S. and state courts are holding that a warrant will be necessary to forensically examine the cell phone, it does appear supportable to seize the phone and then quickly apply for a warrant.