Search and Seizure of Electronic Devices

Electronic Devices

More and more frequently, officers investigating criminal activity develop reason to believe that an electronic device, such as a cell phone, a computer, or a camera, contains data that is evidence of a crime. Thus, essentially, electronic devices are containers in which evidence may be found and courts tend to treat them as such. Thus, search and seizure of an electronic device is governed by the same constitutional principles as search and seizure of other types of containers: accessing data on an electronic device requires a warrant, unless a recognized exception applies.¹

For example, the United States Supreme Court has held that, before searching the contents of a cellular phone, an officer must have either a warrant or a valid exception to the warrant requirement.² The warrant requirement is not limited to the extraction of data using forensic tools. An officer is searching a phone simply by pressing a button to look at the call log and, to do so, must have a warrant or a recognized exception.³

Warrants to search or seize electronic devices fall under the same rules for warrants of other types of property. The affidavit supporting the warrant must show probable cause “(1) that the items sought to be seized are evidence of a crime; and (2) that the criminal evidence sought is located at the place to be searched.”⁴

The New Mexico Supreme Court has ruled that once “there is probable cause to search for a particular item,” the office executing the warrant “can search every container and location within the permitted area where that item could be located.”⁵ It should be noted, however, that the facts included in the affidavit are critical to establishing the proper scope of the warrant and search. In Gurule, the affiant articulated her training and experience, which showed the variety of devices and media on which digital evidence could be found.⁶

In most circumstances, search incident to arrest is not justification to access the data contained on an electronic device. This is because searches incident to arrest are limited by the need to protect officer safety or to preserve evidence.⁷ Therefore, in a search incident to arrest, an officer may “examine the physical aspects of a phone to ensure that it will not be used as a weapon – say, to determine whether there is a razor blade hidden between the phone and its case.”⁸ The data on the device itself, however, does not pose a danger and, therefore, may not be accessed pursuant to a search incident to arrest.⁹

Regarding the need to preserve evidence, generalized concerns about remote wiping or encryption are not sufficient to justify a warrantless search of a cellular phone or other electronic device.¹⁰ Instead, officers can mitigate these concerns by using measures such as “Faraday bags” to prevent the phone from communicating with the network.¹¹  On the other hand, if officers have specific concerns that an attempt to destroy evidence is in progress, then exigent circumstances could justify a warrantless search.¹²

Electronic Communications and Records held by Service Providers

In 1976, the United States Supreme Court decided a case that led to establishment of the the “third-party doctrine.”¹³ Under the third-party doctrine, people generally do not have a constitutionally-protected privacy interest in information or documents stored with a third party.¹⁴

Ten years later, Congress passed the Electronic Communications Privacy Act of 1986 (ECPA), which included the Stored Communications Act (SCA).¹⁵ The statue created statutory privacy protections for certain electronic records held by “providers of electronic communications service,” a catch-all term that generally includes cellular phone providers, internet service providers, and social media networks.¹⁶ The details of the statute and its various requirements are beyond the scope of this manual. It should be noted, however, that protections provided by the statute include, in certain circumstances, warrant or subpoena requirements. Officers seeking access to date held by third-party providers should be familiar with those requirements.¹⁷

ECPA/SCA also authorizes law enforcement to issue preservation requests and requires service providers to preserve records and evidence pending the issuance of a court order or other process.¹⁸ Service providers must preserve the records for 90 days following a request, and that period may be extended by an additional 90 days if law enforcement sends a renewed request.¹⁹

ENDNOTES

1 Therefore, the guidance contained elsewhere in this manual applies with equal force to the search and seizure of electronic devices.

2  Riley v. California,      U.S. , 134 S.Ct. 2473, 2494.

3 Id. 2494.

4 State v. Gurule, 2013-NMSC-025, ¶¶ 13-14, 303 P.3d 838. (See Chapter One of this manual, “Search Warrant Affidavits”).

5 Id. ¶¶ 27-28.

6 Id. ¶ 20.

7 Riley, 134 S.Ct. at 2485.

8 Id.

9 Id.

10 Id. 2486-87.

11 Id.

12 Id. 2487. New Mexico also recognizes the impracticalities of waiting for a warrant as an exigent circumstance that could justify a warrantless arrest based on probable cause. State v. Paananen, 2015-NMSC-031, ¶ 27, 357 P.3d 958. It should be noted, however, that our courts have not specifically addressed whether such a justification applies to warrantless searches.

13 United States v. Miller, 425 U.S. 435 (1976).

14 As of this writing, however, the United States Supreme Court is considering a challenge to the third-party doctrine. In Carpenter v. United States, No. 16-402, the petitioner argues that the doctrine does not apply to historical cell phone records “revealing the location and movements of a cell phone user over the course of 127 days.” Instead, the petitioner argues that the Fourth Amendment requires that this information only be obtained through a warrant. This case has the potential to alter the landscape regarding stored electronic records.

15 18 U.S.C. § 2701, et seq.

16 Id.

17 For example, the statute divides the information generally sought from third party providers into three categories and imposes different process requirements, such as a warrant or subpoena, on each category. The table below identifies the necessary process for different categories of records held in storage at a service provider.

18 18 U.S.C. § 2703(f).

19 Id.