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Court rules police with a search warrant can look at photos in a suspect's smartphone photo folder

The Supreme Judicial Court ruled today that prosecutors can use photos found on the phone of Hyde Park man against him when he comes to trial on gun charges related to a 2011 gun battle outside his apartment.

That the decision came in a 4-3 vote, however, highlights the court's struggles to adapt laws and decisions that date to the age of quill pens to the current digital world.

In its ruling, the state's highest court said that even though a search warrant for Denis Dorela's iPhone only seemed to let police search the phone's text messages and their attachments, photos in a separate photo folder were fair game as well, in part due to the technical issue that photos attached to text messages can be stored in the photo folder, and sometimes stay there long after the messages in question have been deleted.

Also, the justices ruled, there was no practical way for investigators to know what the photos showed until they called them up.

Police say the photos show Dorelas holding a gun and wearing the same green jacket witnesses spotted him in when he allegedly rushed out of his Pierce Street apartment on July 3, 2011 and began exchanging rounds with another man - and getting shot in the leg for his trouble.

Still, the majority on the court continued, investigators have to be careful what they search; the state constitution's equivalent of the Fourth Amendment would not let them go on a fishing expedition through the phone and that requests for search warrants must detail the "particularlized" data investigators seek - while the majority found this criterion met in this case, they criticized the warrant request as poorly written.

The justices explained that:

In the instant case, the police presented evidence in the warrant affidavit that included the statements of witnesses to the effect that the defendant had been receiving threatening communications on his iPhone with respect to money he owed to "people," and indeed had been using his iPhone while arguing with an individual immediately prior to the shooting. This was admittedly sufficient to establish probable cause to believe that the defendant's iPhone likely contained evidence of multiple contentious communications between himself and other persons in the days leading up to the shooting, that is, evidence of communications both received as well as initiated and sent by the defendant that would link him and others to that shooting. The warrant, in turn, included authorization to search for such evidence not only in the iPhone's call history and text message files, but also in its photograph files. ...

Communications can come in many forms including photographic, which the defendant freely admits. So long as such evidence may reasonably be found in the file containing the defendant's photographs, that file may be searched. ... We agree with the motion judge that the evidence sought, for which there was probable cause, might reasonably have been found in the photograph file. Therefore, a search for such evidence in that file was neither outside the scope of the warrant nor unreasonable.

The dissenting justices, however, wrote the rest of the court went too far and that the decision could lead to fishing expeditions on smart phones despite recent Supreme Court and Supreme Judicial Court rulings that limit what investigators can look for. In this case, they wrote, there's no evidence the photos of Dorelas were connected to the telephone threats allegedly made against or by him.

What the affidavit did not provide was reason to believe that the iPhone's entire set of photograph files, as opposed to only those photograph files attached to calls or text messages, would present evidence related to the shooting. In the abstract, I do not disagree with the court's statement that "[c]ommunications can come in many forms including photographic." Nor, apparently, does the defendant. A photograph depicting a severed horse's head, for instance, might well be used to communicate a threat (in the mode of "The Godfather" novel and motion picture). But the hypothetical viability of communication by photographic suggestion, even had it been mentioned in the affidavit, would not have supported a reasonable, commonsensical inference that a search of the defendant's entire set of photograph files was needed to produce the subset of photographs that might at some point have been communicated. ...

We must not be taken in by the shape and size of a device that permits access to massive stores of information of different kinds. Where possible -- recognizing that it not always is -- it may be best to treat such a device more like a city than like a packing crate. Here, there was no impediment to limiting the search to certain types and categories of files stored in specific sections of the iPhone's data storage. Because there was no substantial basis for believing that the entire set of photograph files on the defendant's iPhone contained evidence related to the shooting, that portion of the iPhone should not have been included in the "place" to be searched.

Allowing the police to search a broad variety of categories of files, many of which were at most tangentially related to the communications described in the affidavit, was an "end run" around the particularity requirement. Particularity should mean more than just a general directive to the police to look until they find something.

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Comments

as one of "communications can come in many forms". I will LOL.

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Please don't call the SWAT team!

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Dead body was found in the living room - I know you have a search warrant for the house, but you can't search for the murder weapon anywhere else but the living room. That bloody chainsaw you found in the bedroom that has the victim's blood and alleged perp's fingerprints all over it? Not evidence!

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They actually discuss that in the ruling. Traditional search warrants only get as granular as an address, not a specific room, so they can search all of 123 Main St. for whatever they're looking for. Also, there's the whole "plain view" thing - if something's in plain view, the cop can act on it, even if not related to the warrant (there's a whole body of rulings on when a gun is in "plain view" during a traffic stop).

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Maybe, but I guarantee every sleazy-ass lawyer out there would argue that the arresting cop was too short and could not see the gun from the outside.

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In your theoretic case, wouldn't my phone, at 123 Main Street, be searchable as part of the warrant?

I mean, if the warrant allows the phone to be searched, the phone can be searched, no?

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What if the resident of 123 Main St. that you had the warrant for had a garage with someone elses car in that the resident had access to? Or what if there was a common/shared basement with shared storage with 123B Main St, can you search a closed but unlocked trunk in that basement?

I think that is what some of the dissenters are getting at. If the cops are looking for photos from specific messages, can they go into their facebook messenger account to see if they may have sent those photos via messenger to someone after they were deleted from the phone? What if they were emailed to themselves via a gmail app that was left open, can you go in there to look?

Writing warrants for cell phones are almost as hard as computers or CDR (Crash data recorders). You pretty much need help from the DA or State Police guys for every phone if you want to keep up, and then criminals will know what to do to keep their stuff hidden from warrant searches.

Interesting stuff if you are into warrants and the like I guess.

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The dissent compares a phone to something the size of a city. So your analogy would be more like, a murder happened in one house, so the police should be able to use a warrant to search the house to also search one three houses down the block (or in the next neighborhood). Sounds sorta overreaching now, doesn't it?

The city comparison is particularly apt and I'm quite frankly surprised any of our judges actually understand technology enough to see this. I typically expect more "series of tubes"-style logic out of these kind of people. Modern storage devices are large enough to literally hold millions of files -- my MP3 player for example, a SANSA Clip+ along with its fingernail-sized microSD card can hold more MP3s than several rooms full of cassette tapes. And of course with net access (data which may not be stored on your phone, but through things like browser history, the information is sort of "stored by reference"), you literally have access to all the world's information in your pocket. Seizing someone's phone is not analogous to seizing something like someone's paper address book or a few printed letters; it really is something like the size of a city.

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Encrypting Android
Encrypting iPhone
A privacy-centric phone to begin with

And Phone Passwords Protected By 5th Amendment, Says Federal Court. Not national-level precedent yet, but it's heading that way if you look at the history of these kinds of cases.

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