by Douglas Ankney

The Supreme Court of Michigan held that police must limit a search of digital data from a cellphone in a manner reasonably directed to uncover evidence of the specified criminal activity alleged in the warrant.

On August 6, 2016, Lisa Weber agreed to stay all night at Ronald Stites’ residence and perform sex acts in exchange for $50. Weber observed Stites open his safe, which contained $4,200 in cash. Stites removed a $50 bill to give to Weber. She then called a drug dealer. Shortly thereafter, a man arrived at Stites’ residence and sold crack cocaine to Stites. Later that evening, the drug seller returned and stole the safe at gunpoint. While Weber identified Kristopher Allen Hughes as the robber, Stites was unable to do so.

As Hughes was being investigated for the robbery, officers secured a warrant to search his property, including cellphones, for separate criminal allegations of drug trafficking. The affidavit in support of the warrant contained information from a confidential informant that Hughes and an associate named Patrick Pankey were dealing drugs. The warrant, in pertinent part, authorized officers to search Hughes’ digital data for evidence of “any records pertaining to the receipt, possession and sale or distribution of controlled substances....”

The warrant was executed on August 12, 2016, and officers seized a cellphone from Hughes. On August 23, Detective Edward Wagrowski extracted the cellphone’s data using Cellebrite software. The software sorted the data into various categories and permitted officers to search for isolated data such as phone numbers or words and phrases. About a month after this initial data extraction, the prosecutor in the armed robbery case asked Wagrowski to search the data for contacts with the phone numbers of Weber and Stites. The search uncovered 19 calls between Hughes and Weber on the night of the robbery and 15 text messages, one of which directed Weber to “open the door.”

Hughes ultimately pleaded no contest to drug trafficking charges. But he went to trial three times before being convicted of armed robbery, with the first two trials ending in hung juries. Upon conviction, Hughes appealed, arguing, inter alia, that (1) the phone records should have been excluded from trial because the warrant supporting the search authorized only a search for evidence of drug trafficking and (2) his counsel was ineffective for failing to object to the evidence on Fourth Amendment grounds (“IAC claim”). The Court of Appeals (“COA”) affirmed, and the Michigan Supreme Court granted Hughes’ application for further review.

The Court observed “[t]he Fourth Amendment of the United States Constitution provides: ‘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.’” Reasonableness is the touchstone regarding searches, and a search without a warrant is presumed to be unreasonable. Riley v. California, 573 U.S. 373 (2014). But there is no search, and no search warrant is required where inspection by police does not intrude upon a legitimate expectation of privacy. Illinois v. Andreas, 463 U.S. 765 (1983).

In Riley, the Supreme Court of the United States (“SCOTUS”) held that officers must generally obtain a warrant before conducting a search of cellphone data and rejected application of the “search-incident-to-arrest exception” to the warrant requirement. SCOTUS instructed that even though an arrestee has diminished privacy interests, a search still requires a warrant where privacy-related concerns are weighty. Id. Because cellphones store an abundance of information regarding nearly every aspect of a person’s life, those privacy concerns are weighty. Id. Officers may seize a cellphone incident to arrest, but they may not search its contents without a warrant. Id.

In the instant case, the Court rejected the People’s argument that Hughes no longer had a privacy interest in the phone’s contents because of the warrant authorizing search and seizure of the phone. Authority to seize an item doesn’t eliminate one’s expectation of privacy in that item. United States v. Jacobsen, 466 U.S. 109 (1984).

The People also argued that the search was lawful because it was within the scope of the warrant as evidence of drug trafficking because Weber phoned Hughes to purchase drugs. The Court explained that the Fourth Amendment’s requirement that warrants particularly describe what is to be searched or seized means that warrants must also state with particularity the alleged criminal activity justifying the warrant. Berger v. State of New York, 388 U.S. 41 (1967). This particularity requirement defines the permissible scope of a search pursuant to a warrant, and any deviation from that scope is a warrantless search that is unreasonable absent an exception to the warrant requirement. Horton v. California, 496 U.S. 128 (1990). The government exceeds the scope of a warrant when the search is not reasonably directed at uncovering evidence related to criminal activity identified in the warrant but rather is designed to uncover evidence of criminal activity not identified in the warrant. United States v. Carey, 172 F.3d 1268 (10th Cir. 1999).

While an officer is not required to stop searching when evidence of criminal activity not described in the warrant is uncovered, courts must consider “whether the forensic steps of the search process were reasonably directed at uncovering the evidence specified in the search warrant.” United States v. Loera, 923 F.3d 907 (10th Cir. 2019). Relevant factors in making this determination include: (1) the nature of the criminal activity alleged and the type of digital data likely to contain evidence relevant to that activity, (2) the evidence provided in the warrant to establish probable cause that the criminal acts occurred, (3) whether nonresponsive files are segregated from responsive files on the device, (4) the timing of the search in relation to issuance of the warrant, (5) the technology available to allow officers to separate and view data likely to contain evidence related to criminal activity alleged in the warrant from data not likely to contain such evidence, (6) the nature of the digital device being searched, (7) the type and breadth of the search protocol employed, (8) whether there are indications that data have been concealed, mislabeled, manipulated, or encrypted, and (9) whether, after reviewing a certain number of a particular type of data, it becomes clear those file types are not likely to contain evidence related to the alleged criminal activity. (See opinion for collection of authorities listing and explaining these factors.)

In Hughes’ case, the warrant authorized a search only for evidence related to drug trafficking, not armed robbery. The affidavit didn’t even mention Weber or Stites or that either of them were implicated in Hughes’ drug trafficking or that reviewing data associated with Weber’s name would uncover evidence of drug trafficking. The search criteria were specifically directed at uncovering evidence of drug trafficking. Consequently, the review of the data in question was not reasonably directed toward obtaining evidence of drug trafficking and exceeded the scope of the warrant.

The Court expressly declared: “The ultimate holding of this opinion is simple and straightforward – a warrant to search a suspect’s digital cell-phone data for evidence of one crime does not enable a search of that same data for evidence of another crime without obtaining a second warrant.”

Because the COA had erroneously determined the search was lawful, it concluded that a Fourth Amendment challenge would have been futile and rejected Hughes’ IAC claim.

Accordingly, the Michigan Supreme Court reversed the COA’s judgment and remanded to that court with instructions to address whether Hughes was entitled to relief on his IAC claim. See: People v. Hughes, 2020 Mich. LEXIS 2307 (2020).

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