BuzzFeed has reported that DC prosecutors have sought and obtained warrants to search over 100 phones of those arrested and charged with rioting. They also report that many were legal observers and journalist, which triggers interesting questions regarding the First Amendment and the protection and freedom of the press.
The government’s ability to search our phones is just as legally significant as the government’s ability to search our homes. In fact, similar parallels were drawn by the U.S. Supreme Court in deciding Riley v. California (i.e. holding that the government needs a warrant to search your phone). So when we see massive searches, some conducted with search warrants, there is a lot of room for a critical analysis about whether these searches pass legal muster.
Criminal defense attorneys in the DC cases will undoubtedly file motions to suppress and motions to quash or traverse the search warrants (quash to allege the warrant was issued without probable cause, traverse to argue that there was a material misrepresentation or omission by the affiant officer in obtaining the warrant, thus misleading the judge in issuing the warrant). Or, they may file, as we did in San Diego, a motion to suppress based on a violation of the Fifth Amendment which led to an illegal search.
In reading the BuzzFeed articles, the legal standards for a phone search may become blurry. Here is what is important to remember: a search of a phone can only happen with a validly issued search warrant or by consent of the owner. There is a large body of case law that discusses the requirements of a valid warrant, but in the context of a phone search, there must be probable cause that the phone contains evidence of a crime (step one for any warrant) and the resulting warrant must be narrowly tailored to obtain that particular evidence (i.e. cannot do a data dump of the entire phone).