We filed an amicus brief in Connecticut v. Smith, a case before the Connecticut State Supreme Court, arguing that the Court should develop specific rules for the issuance and execution of cellphone search warrants.
Today, across the country, cellphone search warrants are so broadly and ambiguously worded as to be limitless. Mobile device forensic tools compound the problem: they facilitate an exhaustive and indiscriminate search of a cellphone by law enforcement. Given that this arrangement is constitutionally untenable, we argued that the Connecticut State Supreme Court should use its supervisory authority to craft specific guidance that clearly prescribes heightened particularity and overbreadth requirements for cellphone searches.
That guidance should include at least five things. First, cellphone warrants must specify the specific items to be seized and searched for, and be strictly limited to the time period for which probable cause has been established. Second, the guidance should clearly state that search warrants that authorize searches of “any and all data,” a laundry list of data, or “evidence related to” a crime are presumptively invalid. Third, the Court should decline to extend the plain view exception to cellphone searches. Fourth, the guidance must make clear that search warrants cannot rely upon claims that digital data may be manipulated or disguised to justify a search of the entire phone absent specific, credible information. Finally, the Court should insist upon the production of digital audit logs created by the mobile device forensic tool, so courts are better equipped to assess the reasonableness of a search technique and to ascertain if a cellphone search was sufficiently tailored to the warrant.