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YOU NEED A WARRANT FOR THAT

People v. Herrera

You need a warrant for that.  A search warrant is an order signed by a judge that authorizes law enforcement to search for potential evidence at a defined location.  The Warrant Clause of the Fourth Amendment requires that a warrant particularly describe the place to be searched, and the persons or things to be seized.  U.S. Const. amend. IV.

The particularity requirement is designed to prevent the government from conducting a general, exploratory rummaging in a person’s belongings.  The Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.  The justice system is often challenged to apply antique laws to modern situations.  For instance, how do we apply a law originally intended to protect us from the abuses of British officers, to files in a cell phone?  Such was the dilemma faced by the Colorado Supreme Court in a decision published very recently, on October 26, 2015.  The decision derived from a criminal controversy in the Eleventh Judicial District, Fremont County.

The underlying facts of the case involve an alleged sexual assault.  The mother of the alleged victim intimated to law enforcement that the accused was having sexual interactions with her minor child.  Law enforcement began texting the accused using the name “Stazi,” surreptitiously.  These texts gave rise to the issuance of a warrant to search the accused’s cell phone for “indicia of ownership and for texts between “Stazi” and [the accused].”  Law enforcement typically use a Cellebrite Device to effectuate cell phone searches.  The accused’s phone was not compatible with Cellebrite, thus the officer searched the phone by hand.  While searching the phone by hand, the officer saw a folder entitled “Faith Fallout.”  Faith is the name of the alleged victim.  The officer opened  the file, and found incriminating evidence.

The accused was eventually charged criminally, the defense sought suppression of the evidence found in the Faith Fallout file.  The trial court obliged, and suppressed the evidence.  The prosecution sought review of the trial court’s decision.

The prosecution argued that the evidence was obtained legally; that the search did not exceed the scope of the authorizing warrant and, if it did, then the plain view doctrine applied.  Ultimately, the Supreme Court agreed with the trial court and left the evidence suppressed.  The Supreme Court noted that the warrant in this case authorized, only, two types of searches:  officers were authorized to look for texts between the accused and “Stazi;” and officers were authorized to search for indicia of ownership.  When opening a file entitled “Faith Fallout,” one cannot expect to find evidence related to messages with “Stazi,” nor can one expect to find indicia of ownership.  Essentially, the court found that, absent a showing of file manipulation by the accused, officers did not lawfully access the information in the “Faith Fallout” file.  In this case, the “Faith Fallout” file was the equivalent of a closed container that could not reasonably contain the information sought to be searched.

In the future, you can expect law enforcement to obtain a secondary warrant before accessing electronic files that fall outside the scope of their warrant.  Give us a call for a fair shake and don’t be afraid to say, ‘I know my rights, so you gon’ need a warrant for that.’

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YOU NEED A WARRANT FOR THAT People v. Herrera You need a warrant for that.  A search warrant is an order signed by a judge that authorizes law enforcement to search for potential evidence at a defined location.  The Warrant Clause of the Fourth Amendment requires that a warrant particularly describe the place to be…

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