Remarkable New Fifth Circuit Decision Limiting Cell Phone Searches
Remarkable but wrong, I think -- although, in my view, the correct result in this case for other reasons.
Here's a fascinating new Fourth Amendment case from the Fifth Circuit, United States v. Morton, that sharply limits cell phone searches. According to the court, warrants must establish probable cause separately for each "category" of information in the phone in order to search it.
In Morton, the Fifth Circuit held that the government properly obtained a warrant for text messages, call logs, and contacts, but that the warrant did not establish probable cause to believe the evidence would be in the form of photographs. The photographs were therefore suppressed, and the conviction was overturned.
I think the court's reasoning is wrong, although I happen to think the result in this particular case was correct for other reasons. Here's an overview of the case, and my concerns with it.
I. The Case and Its Reasoning
The government arrested Morton with drugs and obtained a search warrant to search his cell phone for evidence of drug possession. A search of the phone revealed photographs of child pornography. This wasn't exactly a surprise, as the evidence found with Morton suggested he may be a pedophile. But the warrant was for records of drug possession, not child pornography.
Having discovered the child pornography, the police stopped and obtained a second warrant—this time for child pornography. The search pursuant to the second warrant led the police to discover over 19,000 images of child pornography on the phone. Child pornography charges followed, and Morton was convicted and sentence to a nine-year prison term.
In the new decision, the Fifth Circuit overturned the conviction because there was not enough information that the evidence of drug possession would be in photograph form to justify searching the photographs when the government searched the phone under the first warrant. The child pornography had to be suppressed from the first warrant, and that left no basis for the second warrant, so the conviction was overturned.
According to the court, probable cause has to be established for each individual category of information on the phone. The first warrant was proper in authorizing the government to search three categories of information — text messages, contacts, and call logs—because there was probable cause to believe these kinds of records would be evidence on the phone. Morton got his drugs from somewhere, and it made sense that there would be evidence about the buying of drugs in his call logs, contacts, and text messages. So that part was fine.
On the other hand, the government could not search the photographs because there wasn't any particular reason to think that the evidence of drug possession would be in photographic form. The evidence against Morton was of personal use, and there wasn't a particular reason to think that a user of drugs would have evidence of it on the phone.
Indeed, there wasn't even enough evidence to get over the Leon good-faith hurdle, the court rules. As a result, all the evidence had to be suppressed.
II. The Court's Key Move—Probable Cause by Information Category
What makes Morton so important, I think, is its particular solution to the plain view problem in computer searches. As regular readers know, I have been writing on this issue for 15 years. The problem is this: Computer warrant searches are extremely invasive, and the government can use warrants pretextually to search for evidence without probable cause. If everything on a computer can be searched and can come into plain view, how can you limit computer warrant searches to make sure they don't turn out to be general warrants in practice?
The Fifth Circuit's answer is to limit where the government can look. The government can only look in places where probable cause has been established for that category of record. Because there wasn't probable cause that the evidence would be in photograph form, the government couldn't look in the photographs.
Where did that holding come from? Its first source was rather remarkable: At oral argument, the government seems to have conceded the point.
The Court: Do you say you're entitled to everything inside that phone so long as you can look at anything inside the phone?
The Government: No, your Honor.
The Court: Or do you need probable cause for each individual sort of category of information that could be found there?
The Government: That's correct.
But the court goes out of its way to make this point as a holding, not just a conceded point that it assumes to be true. According to the Fifth Circuit, the probable-cause-by-category holding is required by Riley v. California:
Riley made clear that these distinct types of information, often stored in different components of the phone, should be analyzed separately. This requirement is imposed because "a cell phone's capacity allows even just one type of information to convey far more than previously possible." Id. at 394. Just by looking at one category of information—for example, "a thousand photographs labeled with dates, locations, and descriptions" or "a record of all [a defendant's] communications . . . as would routinely be kept on a phone"—"the sum of an individual's private life can be reconstructed."4 Id. at 394–95. In short, Riley rejected the premise that permitting a search of all content on a cellphone is "materially indistinguishable" from other types of searches. Id. at 393. Absent unusual circumstances, probable cause is required to search each category of content.
The court also suggests that each kind of record is its own constitutional "place," so that probable cause for each "place" must be established to satisfy the particularity requirement. The court draws this in part from law review articles:
This requirement is especially important in the context of searches of digital devices that contain so much content. See, e.g., Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 VAND. L. REV. 585, 597–600 (2016); id. at 609 (noting that in drug cases, warrants frequently "authorize searches for photos and videos [on phones] . . . for which there is typically no probable cause"); Andrew D. Huynh, Note, What Comes After "Get A Warrant": Balancing Particularity and Practicality in Mobile Device Search Warrants Post-Riley, 101 CORNELL L. REV. 187, 190 (2015) ("The Court's lengthy discussion about the amount of personal information accessible on a modern mobile device suggests that a search warrant's particularity may be the next subject for scrutiny."); William Clark, Protecting the Privacies of Digital Life: Riley v. California, the Fourth Amendment's Particularity Requirement, and Search Protocols for Cell Phone Search Warrants, 56 B.C. L. REV. 1981, 1984 (2015) ("As the U.S. Supreme Court held in Riley, to allow the police unguided review of the entire contents of a cell phone when executing a search warrant would authorize the exact type of general warrants that the Fourth Amendment forbids.").
III. Why I Think the Reasoning of Morton is Wrong
Is the court's reasoning correct? I don't think so. The Fourth Amendment requires probable cause as to each substantive kind of evidence, but not each form of evidence. You can't know ahead of time what form a particular kind of evidence will take. But the Fourth Amendment doesn't require probable cause as to form, only to substance.
To see this, imagine I told you that I have put evidence of my crimes—a secret code—somewhere in my cell phone. At the same time, I pointedly refuse to tell you the form of the evidence. Maybe it's the text of an e-mail, but maybe it's in a text message. Maybe it's in a note, or a comment attached to a stored contact. Maybe I took a picture of it and it's stored as a photograph. Maybe it's stored as a .pdf file. Maybe it's a mix, like a photograph sent via text. There are endless forms in which the evidence could be on the phone.
Do you have probable cause to get a warrant to search my phone in the above example? I would say absolutely, yes. The place where the phone is located—or maybe the phone itself—is the place to be searched. And you have probable cause to believe the evidence is in the phone. That's all the government needs, I think. It doesn't make sense to limit the government's search within the place to be searched to particular forms of evidence any more than it makes sense to limit the search of tax records in a house to "documents stored on 8.5 X 11 paper" or "items in boxes designed to store records." As the Supreme Court stressed in Ross v. United States, "[w]hen a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers . . . must give way to the interest in the prompt and efficient completion of the task at hand." Everything in the place to be searched can be searched.
Under the Fifth Circuit's approach in Morton, though, I gather there wouldn't be probable cause to search the phone. Sure, you know the evidence is in the phone. But without probable cause as to any particular "category" of information on the phone, the phone is unsearchable. And of course this requires courts to develop a Fourth Amendment jurisprudence of "information categories," whereby judges announce the inherent nature of different kinds of constitutional data that is on a phone. (Apparently, photographs are one category, text messages are another, and call logs a third.)
I don't think the Fourth Amendment can work this way. And nothing in Riley suggests it, it seems to me. Riley required a warrant to search a phone given the invasiveness of cell phone searches, but it doesn't say anything about needing separate probable cause based on the "category" of information on the phone.
Granted, I realize the government in Morton seems to have wrongly conceded the point. I have no problem with the Fifth Circuit accepting the concession in this case. But I think it should have just accepted the point and ruled accordingly, rather than gone on to make the point what certainly looks like the court's holding. It was fair to accept the concession, but as a holding, it seems to me quite wrong.
IV. But the Right Result In This Case, In My View
At this point some of you are thinking, but Kerr, this case stinks! It sure looks like the government was using the warrant pretextually. They suspected that Morton had child pornography on the computer. And they obtained a warrant for something else but probably planned to look for child pornography with the hope that it all came into plain view. Doesn't that raise Fourth Amendment problems?
Yes, I think it does. But I think it raises different Fourth Amendment problems than the Fifth Circuit suggested in Morton. In my view, the Fourth Amendment limit is not in where in the computer the government can search, but what evidence the government can use. As I argued in my 2015 article, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Texas Tech L. Rev. 1 (2015), the Fourth Amendment should be interpreted to impose a use restriction on nonresponsive data in digital search warrants. Evidence outside the scope of probable cause named in the warrant should not be usable, and thus should be suppressed. (As regular readers may remember, the Oregon Supreme Court adopted this view under the state constitution in State v. Mansour.)
What difference would this make? Under my test, if the government had probable cause to believe there was evidence relating to Morton's drug possession on his phone, it could search the entire phone for that evidence—including the photographs. However, the government could not use any child pornography it came across during the search based on the warrant it had obtained for evidence of drug possession. If it came across child pornography in the text messages, they couldn't use that, either. Nor could they use the discovery of the child pornography to get a new warrant for that—that is a prohibited use, as my article explains.
Under my approach, then, the Fourth Amendment doesn't stop the government from looking for all the evidence in the phone. But my approach eliminates the incentive to conduct a pretextual search by eliminating the possible benefit of a pretextual search. If the government wants to recover child pornography from the phone, under my test, the government needs to gather probable cause for that and obtain a warrant to search the phone for evidence of child pornography.
In the end, then, I think the result in this case is right. In my view, the Fourth Amendment should not permit the government to use the search for one kind of evidence to get a different kind of evidence. But the problem isn't where the government looked, or what kind of file was at issue, but rather whether the evidence recovered was within the scope of probable cause established to obtain the warrant.