Michigan Supreme Court Grants Review in People v. Carson

An important case on the particularity of digital-evidence warrants.

Back in March, I had a long post here, Yes, Warrants Allow A Search Through the Whole Phone, criticizing a Michigan Court of Appeals ruling in People v. Carson.  My post began:

As regular readers know, one of the big issues in computer search and seizure law that I often write about is how to limit computer warrant searches.  If everything needs to be searched to find the evidence, and information outside the scope of the evidence sought can be used in plain view, doesn't a search of a computer with a warrant result in a general search — the kind that the Fourth Amendment was enacted to prevent.  My own answer to this puzzle is that the Fourth Amendment requires use restrictions for digital searches.  The whole computer can be searched, but evidence outside the scope of the warrant cannot be used.

In the last year or two, however, a few state courts have tried to limit computer searches through novel interpretations of the particularity requirement. I think this is wrong, and I thought I would explain why.

I'm pleased to report that the state sought review of the ruling from the Michigan Supreme Court, and that today the Michigan Supreme Court agreed to hear the case:

On order of the Court, the application for leave to appeal the February 15, 2024 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall address whether the Court of Appeals erred by: (1) holding that the warrant to search the defendant's cell phone violated the Fourth Amendment's particularity requirement, see People v Hughes, 506 Mich 512, 538 (2020); (2) failing to sever any valid portions of the search warrant from any invalid portions, see People v Keller, 479 Mich 467, 479 (2007); (3) holding that the good-faith exception to the exclusionary rule did not apply, see People v Goldston, 470 Mich 523, 531 (2004), discussing United States v Leon, 468 US 897, 923 (1984); and (4) finding that trial counsel deprived the defendant of his right to the effective assistance of counsel by failing to move to suppress the evidence obtained from his cell phone on these grounds, see Strickland v Washington, 466 US 668, 687-688 (1984).

As always, stay tuned.

Comments

[Brett Bellmore]

"My own answer to this puzzle is that the Fourth Amendment requires use restrictions for digital searches. The whole computer can be searched, but evidence outside the scope of the warrant cannot be used."

And my response was, "Are we pretending 'parallel construction' isn't a real thing?" I still think it's the appropriate response to anybody who suggests that use restrictions are really meaningful.

[apedad]

What is your alternate solution?

If you're looking for paper document evidence, you're going to search the entire desk, i.e., all the drawers.

Law enforcement gathers everything it can get its (digital) hands on and then it's up to the lawyers and judges to determine what can be presented.

[Longtobefree]

Whole desk?
They will search the whole house, all the cars, and the dog (if not shot)

Seriously, do they actually write warrants to search just a desk?

[Mr. Bumble]

...and the wife's underwear draw.

[Brett Bellmore]

As Milena can testify!

[MatthewSlyfield]

The wife is a sketch artist that specializes in underwear?

[Brett Bellmore]

The alternate solution would be something like the judge signing the warrant appointing a special master to do the actual search, rather than letting the police do it.

My point is simply that it's unrealistic to think that, once the police have the information outside the appropriate limits of the search, they won't be using it, regardless of what they say they're doing.

We already know that law enforcement uses illegally obtained evidence if they have it, and simply conceals that use from the courts.

[Orin S. Kerr]

Brett, I'm curious: What does this issue have to do with parallel construction? Assume every criminal investigation in human history involved parallel construction. How does that change this issue? I'd really be interested in your detailed analysis, so I can learn from your wisdom. Thanks.

[Brett Bellmore]

I should think the connection is obvious: Police often use illegally obtained evidence, and conceal that use from the courts through parallel construction because they're not legally ALLOWED to use it.

How is evidence they're restricted from using any different from evidence they're restricted from obtaining, in this regard?

Once police have evidence, they use it. Period. If necessary, they just conceal that use.

[Noscitur a sociis]

I do sometimes wonder where Brett finds the time to become so knowledgeable in so many different areas.

[Brett Bellmore]

Prior to marrying, I read at 300 words a minute, and lacked a social life...

How is this not a valid issue with the proposal to resort to "use restrictions"? We start out knowing that the government fairly routinely uses illegally obtained evidence, and simply conceals that use from courts. Tell them they can't use evidence they've already collected, and they'll just launder that use by already proven means.

Now, maybe Kerr just doesn't mind that, figures it's evidence, it should be used. That's a legitimate viewpoint he's free to defend; A lot of people don't like the exclusionary principle. *I* don't like it, I'd much rather cops who obtain evidence illegally just got prosecuted as criminals.

But let's not pretend use restrictions will really be observed in practice. They won't be.

[Stephen Lathrop]

My own answer to this puzzle is that the Fourth Amendment requires use restrictions for digital searches. The whole computer can be searched, but evidence outside the scope of the warrant cannot be used.

By constructing a contorted analogy, as Bruen instructs, and applying it to the 4A instead of the 2A, but with an eye to the pre-founding taxation power, I can caution you that public advocacy of that sort in Massachusetts, during the Stamp Act controversy, would have left you in fear for your life.

[Ridgeway]

" My own answer to this puzzle is that the Fourth Amendment requires use restrictions for digital searches. The whole computer can be searched, but evidence outside the scope of the warrant cannot be used."

Why limit this just to computers? When I learned about the 4th Amdt back in law school, I always thought this would have been a "cleaner" approach to the whole issue of the discovery of unrelated evidence during execution of a warrant. After a while, though, I realized it was impractical -- the whole thing would go out the window the first time the cops find a severed head in the fridge while they are looking for drugs.

A more workable approach might be for courts to more closely scrutinize the algorithms used by the police/prosecutors to search a computer to ensure they are tailored to actually turn up just what they are supposed to turn up, and nothing more.