On January 7th, 2016, the Sixth Circuit Court of Appeals decided the United States v. Rarick [i], which serves as an excellent review concerning probable cause to search a cell phone and the specificity requirements for search warrants under the Fourth Amendment. The relevant facts of Rarick, taken directly from the case, are as follows:
On February 14, 2013, Christopher Rarick was stopped by Ashland City Police Officer Kim Mager outside a Cheap Tobacco store in Ashland, Ohio, after Officer Mager conducted a LEADS inquiry on the car Rarick was driving and determined the registered owner of the vehicle, Rarick, had a suspended license. Accordingly, Officer Mager stopped Rarick to determine whether he was the registered owner and was thus driving with a suspended license. During the stop, Rarick became argumentative: he challenged the officer’s authority to ask his name or run his license plate, and he refused to produce his driver’s license, insurance information, or vehicle registration. At some point, Rarick removed his smartphone from his pocket, held it up, approached the officer, and stated that he was recording her. The officer took the phone, placed it on the trunk of Rarick’s car, and ordered Rarick to remain in his car while she conducted her work. Rarick grabbed his phone from the trunk and retreated to the passenger seat of his car, whereupon the officer approached him to find out what he was doing. The officer saw that Rarick was manipulating his phone, and she ordered him to stop and to put his hands on the dashboard. Saying that he wanted to record what was happening, Rarick continued to manipulate his phone. Eventually he put the phone down and placed his hands on the dashboard. After backup arrived, Rarick was arrested and taken to jail, where he was cited for obstructing official business and driving with a suspended license. His cell phone—a black Samsung Nexus S 4G model SPH-D720—was seized as evidence.
Rarick refused to consent to a search of his phone. Lieutenant Joel Icenhour then filed an affidavit for a search warrant. In the affidavit, Icenhour stated that he had good cause to believe that evidence relating to the offense of obstructing official business, a violation of Ohio Revised Code § 2921.31, was likely stored in a digital format on Rarick’s phone, which had been taken from Rarick at the time of his arrest. Icenhour’s affidavit stated that “[t]his belief is based on a traffic stop conducted by Officer Kimberly Mager.” Search Warrant Aff. 1, ECF No. 19-1. An Ohio state judge issued a warrant that authorized the search and seizure of, among other things, “[a]ll information within” Rarick’s phone, “including but not limited to machine-readable data, all previously erased data, and any personal communications”; “[a]ny and all electronic data contained in the device’s memory as well as on other internal, external or removable media to include but not necessarily limited to . . . images, voice memos, photographs, [and] videos”; and “[a]ll other fruits and instrumentalities of crime at the present time unknown.” Search Warrant 1-2, ECF No. 19-2.
Icenhour then executed the search warrant by connecting Rarick’s phone to a computer that was running Susteen Secure View 3 forensic cell phone data recovery software. Icenhour downloaded the phone’s data onto his computer. After the data had been downloaded, Icenhour testified, “a little box show[ed] up” on his computer screen, saying “Do you want to view the report?” Hr’g Tr. 28:24-25, Oct. 15, 2013, ECF. No. 54. Icenhour clicked “View the report,” and his computer displayed the downloaded data, which included technical information about the phone itself, call logs, contacts, pictures, audio files, video files, and other data. Hr’g Tr. 28:25-29:8. The report displayed thumbnail images of the pictures and video files; for the video files, the thumbnail image was the first frame of the video. Icenhour acknowledged that it was possible to get an idea of the contents of the pictures and video files by looking at the thumbnails. Icenhour looked for video and audio files because Rarick had told the arresting officer that he was recording her. As Icenhour scrolled down into the section containing video files, he scrolled past the pictures, and he could see from the thumbnails that the pictures contained child pornography. Icenhour then scrolled further down, where he spotted a video with a thumbnail that he thought looked like a beige wall. He testified that he opened the video because he thought that the thumbnail might depict the wall of the Cheap Tobacco store where the stop occurred. It did not—it too contained child pornography.
At this point, Icenhour shut off the video and went to tell his chief of police what he had found. After consulting with the prosecutor’s office, they applied for and received a second warrant, this time asserting probable cause to search for evidence of child pornography and several related offenses under Ohio law. Executing the second warrant, Icenhour found numerous pictures and videos containing child pornography, many of which appeared to have been taken with Rarick’s phone. The police then arrested Rarick and applied for and received a third search warrant for his vehicle and residence. [ii]
Rarick was subsequently indicted for federal crimes related to child pornography and exploitation of a child. He filed a motion to suppress and argued that the search warrant was unconstitutionally broad and executed unreasonably. The district court denied the motion and Rarick pled guilty with the right to appeal. He then filed a timely appeal with the Sixth Circuit Court of Appeals.
On appeal, Rarick argued that (1) the first search warrant failed to meet the Fourth Amendment’s “particularity” requirement and (2) that the manner of the search was not reasonable under the Fourth Amendment.
The court of appeals first stated:
The Fourth Amendment generally requires police to obtain a warrant before searching the digital information stored on a cell phone, even when a cell phone is seized incident to arrest. Riley v. California, 134 S. Ct. 2473, 2493 (2014). The new rule established in Riley applies to cases still pending on direct review, such as Rarick’s. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987). The Fourth Amendment further requires that “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.” U.S. Const. amend. IV. The particularity requirement stems from the Founders’ concern with “curb[ing] the abuses of general warrants, devices which provided British officers with broad discretion to search the homes of citizens of the Colonies for evidence of vaguely specified crimes.” Ellison v. Balinski, 625 F.3d 953, 958 (6th Cir. 2010). The particularity requirement encompasses two issues: “whether the warrant supplies enough information to guide and control the agent’s judgment in selecting what to take; and . . . whether the category as specified is too broad in the sense that it includes items that should not be seized.” Richards, 659 F.3d at 537 (quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999)). [iii] [emphasis added]
Rarick did not dispute that the police had probable cause to obtain a search warrant to search for the video pertaining to his “obstructing official business” charge. Rather, he asserts that the warrant was too broad and did not limit the search to evidence connected to that crime.
The court noted that, while the text of the warrant was vague, it directly referenced the affidavit that the officer completed. As such, the court held that the warrant sufficiently cross-referenced the affidavit. However, the next question then before the court was whether the affidavit sufficiently satisfied the “particularity” requirement. The court stated:
“[T]he degree of specificity required is flexible and will vary depending on the crime involved and the types of items sought.” Greene, 250 F.3d at 477 (quoting United States v. Ables, 167 F.3d 1021, 1033 (6th Cir. 1999)). The description of the things to be seized should, however, be “as specific as the circumstances and the nature of the activity under investigation permit.” Richards, 659 F.3d at 537 (quoting Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001)). In the context of searches of electronic devices, while recognizing the inherent risk that criminals can easily “hide, mislabel, or manipulate files to conceal criminal activity,” we must also take care not to give the Government free rein to essentially do away with the particularity requirement by allowing it to examine every file on the device. Richards, 659 F.3d at 538 (quoting United States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011)). [iv] [emphasis added]
In examining the affidavit, the court found both specific parts, and parts that were overbroad, such as allowing the police to examine GPS data, which was unrelated to the crime. The court then stated that the officer conducting the search did not act upon the overbroad sections of the warrant but rather limited the search to the particular sections that applied to the obstruction charge. The court stated that it would be unjust to invalidate the entire warrant when there were particular sections that were supported by probable cause. As such, the court did not invalidate the entire warrant. Rather, the court stated:
No evidence offered against Rarick was seized pursuant to the overbroad portions of the warrant. Rather, as will be discussed in further detail below, Icenhour executed the warrant as though the infirm portions had been excised, seizing only “images” and “videos” that appeared to be related to the incident at the Cheap Tobacco store. Thus, the district court did not err in denying Rarick’s motion to suppress. [v]
Having determined that the warrant was sufficient in particularity, the court then set out to determine if the manner of the search was reasonable under the Fourth Amendment. The court first stated:
In the context of searches of electronic devices, this court and other courts have recognized that the methodology of a search matters in determining whether it is constitutionally reasonable. See, e.g., Richards, 659 F.3d at 538-39; Stabile, 633 F.3d at 237-40; United States v. Burgess, 576 F.3d 1078, 1094-95 (10th Cir. 2009). While it is true that “[a]s the description of . . . places and things becomes more general . . . the search method must be tailored to meet allowed ends,” eventually, “there may be no practical substitute” for actually examining most or even all potential repositories, particularly when the search is for image files. Richards, 659 F.3d at 539 (quoting Burgess, 576 F.3d at 1094). [vi]
Rarick argued that the only reasonable way to search for the video of his obstruction crime was to filter the search by date of the incident. The court stated that that would have been reasonable; however, it was not the only reasonable method of search. The officer in this case rather, scrolled the thumbnails in the audio/visual files. During this scrolling, he observed thumbnails that appeared to be child pornography. Then, he opened video that appeared that it could be the video of the obstruction incident. This was also child pornography; the officer stopped the search and obtained second search warrant for child pornography. The court then stated:
Although the recording could have been found by first searching for data recorded on February 14, 2013, the date of Rarick’s arrest, Icenhour’s approach of searching by scrolling through all of the thumbnails, rather than just those on the date of Rarick’s arrest, and taking care not to closely examine more than the target of the search warrant was not unreasonable. [vii]
Therefore, the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 14-4212 (6th Cir. Decided January 7, 2016 Unpublished)
[ii] Id. at 1-3
[iii] Id. at 5
[iv] Id. at 6
[v] Id. at 8
[vii] Id. at 10