Ride the Lightning

DC Appeals Court Curbs Police Power to Seize Cell Phones

August 24, 2017

Naked Security reported that the US Court of Appeals for the DC Circuit threw out evidence police seized under a search warrant that sought cellphones and electronic devices without showing probable cause that the suspect actually owned any.

The bald assumption that a suspect in a crime has a phone doesn't support a search of his home, Circuit Judge Sri Srinivasan, joined by Judge Nina Pillard, wrote in a decision issued August 18^th.

The case involved Ezra Griffith. As a 23-year-old, he'd already been convicted of attempted robbery. Police were investigating a homicide when they got a tip that Griffith might have been involved. The tip came from Griffith himself. While he was in jail for the attempted robbery, he used prison phones – which record conversations – to talk to several people about the police's interest in his vehicle, which had apparently been caught on surveillance cameras near the scene of the shooting death.

After he got out of jail, Griffith moved in with his girlfriend. Police got a warrant to search this residence as part of the ongoing homicide investigation.

In the affidavit to get the warrant, a 22-year law enforcement veteran made the following declaration:

"Based upon your affiant's professional training and experience and your affiant's work with other veteran police officers and detectives, I know that gang/crew members involved in criminal activity maintain regular contact with each other, even when they are arrested or incarcerated, and that they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices and the internet, to include Facebook, Twitter and E-mail accounts.

Based upon the aforementioned facts and circumstances, and your affiant's experience and training, there is probable cause to believe that secreted inside of [Lewis's apartment] is evidence relating to the homicide discussed above."

What was left out of that search warrant affidavit was any mention of Griffith owning a cellphone, and any evidence related to the homicide that might be found on the phone. In fact, the law enforcement agent who made out the affidavit may not have had much belief that Griffith did have a phone, since he broadened it to include any electronics that might be in the girlfriend's apartment.

Those assertions just weren't supported by much in the warrant, the Appeals Court pointed out.

"Yet the affidavit supporting the warrant application provided virtually no reason to suspect that Griffith in fact owned a cellphone, let alone that any phone belonging to him and containing incriminating information would be found in the residence. At the same time, the warrant authorized the wholesale seizure of all electronic devices discovered in the apartment, including items owned by third parties. In those circumstances, we conclude that the warrant was unsupported by probable cause and unduly broad in its reach."

It's not that probable cause was lacking, the court said. It's just that the probable cause was appropriate for an arrest warrant, not a search warrant:

"To obtain a warrant to search for and seize a suspect's possessions or property, the government must do more than show probable cause to arrest him. The government failed to make the requisite showing in this case."

In fact, the Appeals Court noted, if the police had obtained an arrest warrant, it would have allowed them to seize the broad array of things they were after: all electronic devices, including cellphones, computers, PDAs, tablets, CDs, DVDs, or external drives; and anything that might have mentioned the shooting death, be it handwritten notes, papers, photographs, or newspaper clippings.

When police showed up at the front door with the search warrant, one officer went around to the back of the house. That's where he says he saw Griffith toss a gun out the bedroom window and on to the ground. In April 2013, Griffith was convicted of unlawful possession of a firearm by a felon.

That's the conviction that that DC Appeals court overturned, saying in a two-to-one ruling that the police found the weapon only because they had drafted an "overly broad" search warrant.

US v. Griffith is just the latest case in which police have been asked to provide probable cause before seizing and searching electronic devices. The Supreme Court has upheld the notion that our privacy is at stake when searching our electronics, ruling against warrantless phone search in cases such as US vs. Jones and Riley vs. California and tackling the warrantless seizure of cellphone location records more recently.

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