United States District Court, D. Kansas
IN THE MATTER OF THE SEARCH OF Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office.
MEMORANDUM AND ORDER DENYING APPLICATION FOR SEARCH WARRANT
DAVID J. WAXSE, Magistrate Judge.
The Court has been asked to issue a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure for the contents of cell phones that are currently in the custody of the United States Drug Enforcement Agency ("DEA"). Based on this Court's previous rulings and other case law, this request has been denied without prejudice. This memorandum will more explicitly explain the reasons for the denial and what process would allow the warrant to be issued.
As part of its investigation of possible violations of 21 U.S.C. §§ 841(a)(1), 843(b) and 846, the Government submitted an application for a search warrant seeking information stored on five (5) cellular phones. In the accompanying affidavit, the DEA Task Force agent alleges there is probable cause to believe the cellular phones were used in connection with and contain evidence of such violations. Thus, the Government requests authorization to search the devices and seize any names, addresses, telephone numbers, text messages, digital images, video depictions, or other identification data or communications that are evidence of violations of 21 U.S.C. §§ 841(a)(1), 843(b) and 846.
Previously, the Court denied a government search warrant application for email communications and stated "[t]o comport with the Fourth Amendment, the warrants must contain sufficient limits or boundaries so that the government-authorized agent reviewing the communications can ascertain which email communications and information the agent is authorized to review." Thereafter, the Court expanded and applied that same rationale to two cases involving search of cell phones: In re Search of Nextel Cellular Telephone ("Cellular") and In re Search of Three Cellphones and One Micro-SD Card ("Three Cellphones").
In Cellular, the government submitted a search warrant application that included what it called a "Search Methodology, " which attempted to explain how searches on the already lawfully seized cellphones would be conducted. The Court explained that Riley v. California  supported the Court's request for a search protocol. Accordingly, the Court denied the government's application because it violated the probable cause and particularity requirements of the Fourth Amendment.
In Three Cellphones, the government submitted a search warrant application that did not include a search methodology. On that ground, alone, the Court could have denied the search warrant application. Instead, the Court further explained its Cellular rationale by clarifying why it requested a search protocol. Because searches of electronically stored information-be it a cell phone, thumb drive, or computer hard drive-expose substantial amounts of private, personal data to the government, an "explanation of the government's search techniques is being required in order to determine whether the government is executing its search in both good faith and in compliance with the probable cause and particularity requirements of the Fourth Amendment."
Currently pending before the Court is a DEA search warrant application for five cell phones. Like Three Telephones, the government's application lacks a search protocol. Thus, the Court cannot grant the government's application. In an effort to clarify its position, and in light of recent decisions outside this jurisdiction in which courts have granted search warrants in similar circumstances,  the Court would, once again, like to further explain its reasoning for requiring a search protocol before issuing a search warrant seeking to search devices containing electronically stored information.
A. The Constitutional Basis for the Court's Concerns
The Fourth Amendment guarantees the right of citizens against unreasonable searches and seizures:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The fundamental purpose of the Fourth Amendment is to "safeguard the privacy and security of individuals against arbitrary invasions by government officials." "As the text makes clear, the ultimate touchstone of the Fourth Amendment is reasonableness.'" "A search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing... reasonableness generally requires the obtaining of a judicial warrant." Such a warrant must: (1) be issued by a neutral magistrate; (2) allow the magistrate to find probable cause to believe that the evidence sought will "aid in a particular apprehension or conviction' for a particular offense;" and (3) describe with specificity the "things to be seized, ' as well as the place to be searched."
The Supreme Court has established that judicial scrutiny of proposed search warrants "is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without careful prior determination of necessity." Determining probable cause in a warrant requires the "judicial officer [to] decide whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'"
The Fourth Amendment particularity requirement enables the court to "ensure that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." It also assures both the court and the individual whose property is searched or seized of the lawful authority of the executing officer, the officer's need to search, and the limits of the officer's power to search. "To determine if the place to be searched is particularly described, courts ask "whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.'" To determine if the things to be seized are particularly described, there must be language in the warrant that creates a nexus between the suspected crime and the things to be seized. Thus, the description of the items to be seized must be confined to "particularly described evidence relating to a specific crime for which there is demonstrated probable cause." Taking the above together, the scope of a lawful search is:
defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are ...