A case argued before the Michigan Supreme Court Thursday could decide what’s required for police to search through someone’s cell phone.
The case involves a man accused of robbing his neighbor. Police took his phone during the arrest and later went through it after getting a search warrant. That search found incriminating texts.
A split Michigan Court of Appeals invalidated that warrant, however, finding it was too general for requirements under the U.S. Constitution’s Fourth Amendment. The amendment blocks “unreasonable searches and seizures.”
The majority opinion referenced previous cases that found a “general warrant” wasn’t enough for a search to hold up in court, and that limitless searches of an entire phone counted as a general warrant.
“Warrants for searching and seizing the contents of a modern cell phone must be carefully limited in scope. This is not to say that the police must be told precisely what they are looking for or where to find it, but there must be guardrails in place,” Judge Allie Greenleaf Maldonado wrote for the appellate court.
But prosecutors are arguing that essentially places a new level of scrutiny on cell phone searches compared to other types of search warrants.
Christopher Allen is Michigan assistant solicitor general.
“While it might be more protective of privacy to require more specific things, specific descriptions in every case, simply that's not what the Fourth Amendment requires,” Allen said in court Thursday.
Beyond that, Allen said the warrant in this case did have safeguards by refencing the suspected crime.
“That's something I think that the opposing side has really minimized as not doing any work. The Court of Appeals as well,” Allen said. “That does a lot of work, because it not only limits the type of content that would be reasonable to search for, I think depending on the nature of the crime, how far back in time can you look in that person's phone.”
The Court of Appeals cited the search warrant itself as asking for “any and all records or documents* pertaining to the investigation of Larceny in a Building and Safe Breaking.”
The defense counsel and advocacy groups have expressed concerns with that language choice.
Hannah Zhao is a senior staff attorney with the Electronic Frontier Foundation, a national group that filed a brief with the court criticizing the warrant.
“There were zero limits. It allowed for the search of any and all data on the phone. And that is just not necessary when you have a specific crime that you suspect someone of committing,” Zhao said Thursday in a phone interview.
Zhao said the nature of personal devices and how much private information they store means courts and policymakers need to be careful about how they apply privacy laws to them.
Overall, defense attorney Nick Bostic said, Michigan Supreme Court justices will need to decide a few key questions. That includes whether the entire warrant was bad, whether parts of it can be redeemed and evidence from those safe parts admitted, or whether an exception for good faith should apply.
The appellate court ruled the exception did not. Bostic said he hopes the Supreme Court agrees.
“The two things I think that they're really wrestling with is, we have this modern technology. And so, we've got to apply something that was written almost 250 years ago. But we have all this other law and these directions from the U.S. Supreme court as to how to apply the exclusionary rule,” Bostic said in an interview with Michigan Public Radio.
He said in contrast to how the prosecution has characterized his arguments, he just wants to ensure it’s clear that the standards for searching phones are the same as for searching other property.
