Police’s phone searches on hold
Agencies seek to adhere to Maryland high court ruling
Baltimore Police have stopped extracting information from cellphones, a powerful investigative tool, while the department evaluates how to ensure its search warrants meet the requirements of a consequential opinion rendered this week by Maryland’s highest court.
The Court of Appeals’ ruling mandates police in Maryland be more specific when applying for warrants to search people’s cellphones and recommends law enforcement agencies adopt protocols to pull data from the devices under more narrow parameters.
Authored by Judge Jonathan Biran, of the 5th Appellate Judicial Circuit, the opinion released Monday builds on a principle that has percolated through the federal courts: A recognition that smartphones store some of society’s most sensitive information — from a person’s bank records to their personal photographs — and that the government shouldn’t have unfettered access to those private contents.
The precedent-setting opinion makes clear the “particularity requirement” of the Fourth Amendment — mandating warrants identify specific places, items or people
to be searched or seized — applies to cellphones. Whereas police may have previously asked a judge for access to “any and all” phone data, the ruling says they have to narrow their probe to the information relevant to an investigation.
“This is a really important decision about limiting the extent to which the police are allowed to basically see the most intimate parts of your life,” said Katie Kronick, assistant law professor at the University of Baltimore School of Law. “It’s a huge development.”
Kronick said the practice of police writing “blanket warrants to get into cellphones” dates to the landmark Supreme Court decision in Riley v. California, which in 2014 established that law enforcement needed a court order to seize and search a cellphone.
A smartphone keeps the user’s call logs, text messages, photos, location data and internet search history, among other types of data.
Hidden in the troves of data could be a clue that cracks a case for a detective. Cellphone search warrants have become commonplace in homicide, shooting, robbery and drug investigations.
“The cellphone has now become the No. 1 target for law enforcement,” said Dr. William Folson, an expert on digital forensics who has testified as an expert on cellular devices in federal, state and military court.
To get access to a phone, an investigator has to convince a judge that there is probable cause that its contents would yield evidence of a crime.
Equipped with the court order, most agencies use the Cellebrite UFED device to break into a locked phone and download its data, Folson said. The Cellebrite program then exports a report, which could be thousands of pages long, enumerating the phone’s contents.
Folson, who worked in law enforcement for a decade, said some agencies have the technology to narrow the parameters of the extraction by the type of data or timeline, but that hasn’t been the practice — and for legitimate reason: It makes the job more difficult.
“When you have a cellphone and you suspect it’s used as an element of a crime, you don’t know where those elements are going to be stored,” Folson said. “Let’s say, for example, I send a threatening letter to somebody. I can type that out on my phone, I can send it as an email, or I can type it out on my home computer, set it out on my desk, and take a photograph.”
“The evidence could be a picture or the evidence could be a text file or the evidence could be so many things stored in so many places,” he added.
Baltimore Police average two phone extractions every day, and are “committed to adhering to new case law,” said department spokeswoman Lindsey Eldridge.
“Based on the opinion, we have halted all extractions and are not accepting any new requests,” Eldridge said in an email to The Baltimore Sun.
She said the department is consulting its legal department, the city State’s Attorney’s Office and the Office of the Attorney General “to ensure the current search warrant template is in line with all requirements.”
Spokespeople for the Baltimore state’s attorney’s office and the Maryland State Police did not respond to questions Thursday.
Baltimore County Police spokeswoman Joy Lepola-Stewart said the department was “aware of the Court ruling, and will be working with State’s Attorney Scott Shellenberger to ensure that the Department’s investigations continue to satisfy all constitutional requirements.”
To the city’s south, Anne Arundel County Police have not halted cellphone extractions in light of the high court’s decision, said Lt. Jacklyn Davis, a department spokeswoman.
The department is “reviewing with the state’s attorney the templates for our cellphone warrants to make sure everything is in compliance,” Davis said.
Although the opinion is unambiguous about its intent, the court opted for general guidelines for law enforcement and trial judges rather than a step-by-step process for how agencies should come into compliance. It provided examples for protocols police departments could implement to adhere to the new law, carved out exceptions and left judges discretion to apply it on a warrant-by-warrant basis.
The opinion says “you can’t just do an overly broad dump,” said Natalie Finegar, a veteran defense attorney in Baltimore. “But it’s not telling them how they can get away from that.”
She summed up how it might be applied. “Because they may have probable cause for one activity and one time period, it doesn’t mean they should be able to search your entire electronic history that’s stored in your phone,” Finegar said. “If I’m accused of a robbery yesterday, what I did six months ago is not relevant, unless I was planning it for six months.”