A criminal Defendant in a gang case challenged the search of his smartphone and reading of his text messages by a detective. The California Court of Appeal said 1) the search was valid pursuant to the search warrant and 2) the police officer could read the text messages. People v. Rangel, 206 Cal. App. 4th 1310, at *10 (Cal. App. 1st Dist. 2012).
The case centered on the police executing a search warrant after the Defendant’s arrest. The detective accessed the Defendant’s phone and read the text messages on the smartphone. The opinion noted that the detective had “examined hundreds of cell phones in the course of his duties and knew that text messages sometimes contained phone numbers.” Rangel, at *6.
The Defendant argued the search of the phone was outside the scope of the search warrant.
Searching the Phone
The search warrant stated the following for the search:
“Gang related paraphernalia typically retained by gang members can also appear in other forms, including but not limited to, newspapers, artwork, compact disks, audio and videocassette, cameras, undeveloped film, address books, telephone lists, graffiti collections, and magazines.”
Rangel, at *10.
Case law holds that search warrants can authorize the search of a laptop computer, even when “computer” is not listed in the warrant, because the device is under the party’s dominion and control. Additionally, computers generally contain the information described in a search warrant. Rangel, at *9-10.
The Court of Appeal held the following:
A smartphone such as appellant’s is akin to a personal computer because it has the capacity to store people’s names, telephone numbers and other contact information, as well as music, photographs, artwork, and communications in the form of e-mails and messages—all of which may amount to gang indicia, depending on their content. As such, appellant’s phone was the likely container of many items that are the functional equivalent of those specifically listed in the warrant.
Rangel, at *10-11.
DRT (Detective Reading Texts)
The Court of Appeal quickly found that the detective could read the text messages pursuant to the search warrant, because the text messages were related to gang-related crime. Rangel, at *11-12. The Court relied on Federal precedent, which states that “a second warrant to search a properly seized computer is not necessary ‘where the evidence obtained in the search did not exceed the probable cause articulated in the original warrant.’” Rangel, at *12, citing U.S. v. Evers (6th Cir. 2012) 669 F.3d 645, 652.
As the Court of Appeal explained:
The search warrant, supported by probable cause, authorized the police to search appellant’s house and seize gang indicia of any sort. Such indicia could logically be found in appellant’s cell phone. A search of that phone to extract such information was contemplated by the warrant.
Rangel, at *12.
Bow Tie Thoughts
I completely agree with the results of this case, just not how the detective searched the phone. Accessing the phone and just reading the text messages arguably changed the metadata of any information on the phone. It can also create a chain of custody issue on the device with questions of who accessed what and when. At a minimum, the data should have been preserved in a static bag to avoid additional text messages being received and the information collected in a defensible manner. Not doing so is like not wearing gloves while investigating a crime scene.
While there are times it might be harmless error, it should not be standard operating procedure.
Insurgents in Iraq have used smartphones to detonate IEDs. US Explosive Ordinance Disposal (EOD) teams have imaged cell phones under gunfire; police executing a search warrant should be able to do the same, minus the gunfire and risk of a bomb going off, to ensure no evidence is lost and that the information is preserved in a defensible manner.
Text messages can be preserved in multiple ways. One way is to image the phone with a product such as Paraben’s Device Seizure technology. Another is to take photos of the phone. Paraben has a Project a Phone kit for such preservation. There are other technologies that can also preserve the contents of a text message. Plus, the data might also be backed-up on a computer or be recoverable from the service provider.
The other major take away from this case is that the boilerplate language of search warrants need to be updated. How many people still have videotapes, audiocassettes, and undeveloped film for police to search? A search warrant reflecting today’s technology may look something like this:
…including but not limited to, newspapers, magazines, artwork, electronically stored information such as images, audio or video files, content such as address books or telephone lists, either in hard copy or digital format, stored on CD’s or DVD’s, removable media such as thumb drives or memory cards, cameras, computers, or smartphones.”
For those who want to learn more about smartphone forensics, I encourage you to attend the Paraben Forensic Innovation Conference, held in Park City, Utah from November 3 to 6, 2012. I am helping the conference organize PFIC’s first dedicated Legal Track. We have excellent lawyers and eDiscovery professionals committed to speak at the event. Hope you can join us.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.