Another Cell Phone Search Warrant Found to Be Overbroad

This wikilog article is a draft, it was not published yet.

by: Ryan • June 14, 2016 • no comments

Opinion out of Massachusetts here. Unfortunately for this defendant, it was found to be harmless.

But as we observed in Dorelas, which involved a search of a cellular telephone offering features and access to the Internet similar to the defendant's, where search of this type of cellular telephone is sought, there must be probable cause that the device contains "particularized evidence" relating to the crime. See Dorelas, supra at 502. The properties of such a telephone render it "distinct from the closed containers regularly seen in the physical world, [and] a search of its many files must be done with special care and satisfy a more narrow and demanding standard" than exists for establishing probable cause to search physical containers or other physical items or places. See Dorelas, supra at 502. In particular, it is not enough that the object of the search may be found in the place subject to search. See id. at 501-502. Rather, the affidavit must demonstrate that there is a reasonable expectation that the items sought will be located in the particular data file or other specifically identified electronic location that is to be searched. See id. at 503-504.

As I have noted in previous posts, about once a month, maybe slightly longer, there is an opinion out of a state or federal appellate court finding a cell phone search warrant overbroad. We're still waiting on such on opinion out of Oregon, but in the meantime, please preserve this issue, and talk to me if you need help to do so.