Can you use electronic warrants to search mobile devices?
Written by Christa M. Miller   

In the past few years, some states, and county or municipal jurisdictions within states, have begun to allow electronic search warrants to be implemented. The U.S. Supreme Court’s ruling on Missouri v. McNeely (569 U.S. ___ [2013])—that police could not obtain blood evidence from drivers they suspected of operating under the influence—accelerated a trend toward e-warrants, which make in-field search and seizure a much faster process.

So, is it possible to use e-warrants to perform mobile device extractions in the field? Technically, yes… with one caveat: officers seeking e-warrants should be able to customize them when needed. A boilerplate warrant, which is feasible for blood evidence (blood is only one thing that can exist only in one place) is not feasible for digital evidence.

That’s because boilerplate warrants for mobile device evidence risk being over-broad, capturing private data that have nothing to do with the investigation; or over-narrow, missing critical inculpatory or exculpatory data.

Three Steps to Prepare for Decentralized Mobile Forensics

A search warrant must be particular, spelling out the place to be searched and the particular things to be seized. Although a mobile device might be considered a “place” to be searched, the “things” it contains—text messages, images, call logs, geolocation, and other forms of data—are not equivalent forms of evidence.

For example, an officer investigating a traffic collision might need to access text messages, call logs, and perhaps social media apps, but images and video would not be as relevant unless the officer were given a reason to suspect a driver was recording them at the time of the crash. An officer investigating a gang-related shooting, however, may need images and video in addition to various forms of messaging.

Just because different forms of data may be relevant to a case does not mean all the data in that form is relevant. In other words, officers should take care to narrow time and date ranges. If the investigation shows that broadening the ranges is needed, a new search warrant would be in order.

As with any legal issue, check with your local prosecutors on whether e-warrants are possible and feasible for mobile-device evidence in your jurisdiction. If they are, prosecutors should be able to provide guidance on how and when to customize affidavits and search warrants.

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