Several years ago I had the opportunity to observe when a detective came to a magistrate's office to petition for a search warrant. The warrant sought to search the contents of a person's phone, essentially without any limitations. The alleged crime was assault and battery on a family member. When asked "What is your probable cause that the phone is likely to contain evidence of the commission of this crime?" the detective had basically nothing to say (having put nothing to that effect in the affidavit for the search warrant) other than some vague (cooked up on the spot?) statements about the "mobile nature of our modern society and the fact that cell phones are everywhere and everyone has one." The magistrate denied the warrant, but it's a sad testament to the propensity of law enforcement to cut corners that that search warrant affidavit was far from the last one I saw that targeted the cell phone of an accused and claimed that it was necessary to search the entire contents of the phone.
righthand · 33m ago
That’s because law enforcement is encourage to give least amount of effort to find any kind of damning evidence that a DA can use. The detective doesn’t care about justice but instead closing the case. If I have access to your entire phone, I can use anything I find against you as probable cause whether it’s related to the crime or not.
pcaharrier · 24m ago
> If I have access to your entire phone, I can use anything I find against you as probable cause whether it’s related to the crime or not.
Well, that gets into the "fruit of the poisonous tree" doctrine, but we're not doing a full criminal procedure law school course today . . .
Ironically, I heard more than one detective say that when they "dumped" a phone like that, they rarely found much useful evidence. There's just too much information on any given cell phone to be able to go through it all. So, in the end, their fishing expeditions end up being a waste of time and resources.
0cf8612b2e1e · 4m ago
If they have a warrant to the phone, what is poisoned fruit? It only becomes tainted evidence if they eg) stole the phone and rifled through it.
duxup · 1h ago
>Michael Carson became the focus of a theft investigation involving money allegedly taken from a neighbor’s safe.
>Authorities secured a warrant to search his phone, but the document placed no boundaries on what could be examined.
>It permitted access to all data on the device, including messages, photos, contacts, and documents, without any restriction based on time period or relevance. Investigators collected over a thousand pages of information, much of it unrelated to the accusation.
Yeah that's pretty absurd.
pcaharrier · 1h ago
Pretty absurd and sadly common (in my several years' experience working in the criminal justice system). Good for Michigan for putting a stop to it.
sidewndr46 · 50m ago
As others have mentioned the courts in Michigan don't have any real authority to stop this. Also in the rare case that someone in law enforcement gets caught doing this sort of thing, the 'punishment' is that they have to promise not to do it again
pcaharrier · 22m ago
>As others have mentioned the courts in Michigan don't have any real authority to stop this.
Who has said this? People are saying that a ruling of the Michigan Supreme Court won't stop Michigan police officers from getting search warrants without limitations? How did these people come to that conclusion?
mrkstu · 41m ago
They can stop Michigan judges from granting warrants that fall within this scope, which should stop 90%+ of the problem within their purview.
Now the downside is that since they rely on the Federal Constitution in the ruling rather than the Michigan one, if the Supreme Court ever rules differently, this precedent will be overturned, even in Michigan.
pcaharrier · 15m ago
They hinted at the issue in footnote 11:
"Our state Constitution, Const 1963, art 1, § 11, also guards against unreasonable searches and seizures. In fact, as amended by voter initiative in the 2020 general election, Const 1963, art 1, § 11 specifically provides that “[n]o warrant to . . . access electronic data or electronic communications shall issue without describing them . . . .” However, defendant’s claims below rested solely on Fourth Amendment principles. Therefore, we have no occasion to consider whether the language of Const 1963, art 1, § 11 provides broader protection than the Fourth Amendment in this context. Compare People v Lucynski, 509 Mich 618, 634 n 6; 983 NW2d 827 (2022) (noting that Const 1963, art 1, § 11 is interpreted coextensively with the Fourth Amendment unless there is a compelling reason for a different interpretation), with People v Bullock, 440 Mich 15, 30-31; 485 NW2d 866 (1992) (concluding that a textual difference between the Eighth Amendment and Const 1963, art 1, § 16 supported a broader interpretation of our state constitutional provision)."
So really the downside is that the defendant's lawyer didn't raise the state constitutional issue (which looks even clearer).
sidewndr46 · 52m ago
What's more absurd is that a warrant could ever establish such a restriction. If the suspect had a file named "Not evidence of me stealing my neighbor's safe" and "Definitely not a video of me practicing how to break open a safe" would it be fair to assume the warrant doesn't allow access to it?
lesuorac · 36m ago
If the warrant doesn't have a restrictions on it then it's a "General Warrant" and that was a major complaint of the founders of the USA.
They really didn't like it when cops showed up and took their furniture (think filing cabinet) because "it might contain evidence of sedition".
CamperBob2 · 37m ago
What's more absurd is that a warrant could ever establish such a restriction.
Absurd or not, it's what the Fourth Amendment requires, at least in spirit. The warrant must specify the scope of the search in advance ("...and particularly describing the place to be searched, and the persons or things to be seized.")
Police work is not supposed to be easy. When police work is easy, that's basically the definition of a police state.
pcaharrier · 28m ago
>If the suspect had a file named "Not evidence of me stealing my neighbor's safe" and "Definitely not a video of me practicing how to break open a safe" would it be fair to assume the warrant doesn't allow access to it?
No, this is silly. That's not how search warrants ever work. The Fourth Amendment imposes no such "only search where labeled" requirement. It does, however, mean that police can only search areas where they are likely to find evidence of the commission of the crime that is alleged in the affidavit. For example, if the crime is theft of a full-size refrigerator and police have probable cause to believe that the stolen refrigerator is located at the residence of the accused, they can go into his house and look for the refrigerator anywhere that a refrigerator could be. That does not, however, given them the right to go rifling through his file cabinet or his underwear drawer, unless they have specific, articulable facts (i.e., not just a hunch) that there is probable cause that some other evidence of the commission of that crime will be found in such places.
What does that look like when searching a suspect's cell phone? Obviously every case is going to be different, but the point is that warrants cannot be utterly boundless. Such "general warrants" are one of the reasons the American colonists listed as a grievance against King George in the Declaration of Independence and today issuing such warrants would be considered prosecutable malfeasance in office. if police want to use search warrants as evidence-gathering tools they have to follow the law or convince the legislature to change it.
EDIT: Actually, consider this as an example.
California Penal Code § 653m says the following (subsection b): "Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business."
So let's say jilted boyfriend decides to ring up his ex-girlfriend a couple dozen times in the wee hours of the morning, but he uses something to block his caller ID. In that case, there might be evidence on his phone that he dialed the girlfriend's phone number when she claims the harassing phone calls came in. So can the police search his phone for evidence that he called her number? Absolutely. Can they look through everything on his phone (pictures, notes, settings, etc.)? Absolutely not.
SamoyedFurFluff · 49m ago
I mean, at minimum I doubt anything on his phone is relevant from a year, two years ago.
strathmeyer · 25m ago
A good HackerNews poll would be to ask how many people have had their phones cloned by the police, I didn't know it was uncommon. I guess they've stopped since phones are encrypted.
tobinc · 1h ago
Oh cool so I'm sure we'll see fines or imprisonments or something right?
claytongulick · 1h ago
Sudden outbreak of common sense.
ranger_danger · 1h ago
FYI The entire state of Michigan falls within the 100-mile border zone, where searches do not have as much protection:
Since the western side of the state is quite obviously more than 100 miles from Canada I had to look this up. Apparently it's because the lakes count as international borders. That seems pretty crazy to me, especially in the case of Lake Michigan.
harikb · 48m ago
Forget lakes, it can be interpreted as any airport with an international flight. We are all within "100 miles of a border" even when walking our dog in the morning.
Well, that gets into the "fruit of the poisonous tree" doctrine, but we're not doing a full criminal procedure law school course today . . .
Ironically, I heard more than one detective say that when they "dumped" a phone like that, they rarely found much useful evidence. There's just too much information on any given cell phone to be able to go through it all. So, in the end, their fishing expeditions end up being a waste of time and resources.
>Authorities secured a warrant to search his phone, but the document placed no boundaries on what could be examined.
>It permitted access to all data on the device, including messages, photos, contacts, and documents, without any restriction based on time period or relevance. Investigators collected over a thousand pages of information, much of it unrelated to the accusation.
Yeah that's pretty absurd.
Who has said this? People are saying that a ruling of the Michigan Supreme Court won't stop Michigan police officers from getting search warrants without limitations? How did these people come to that conclusion?
Now the downside is that since they rely on the Federal Constitution in the ruling rather than the Michigan one, if the Supreme Court ever rules differently, this precedent will be overturned, even in Michigan.
"Our state Constitution, Const 1963, art 1, § 11, also guards against unreasonable searches and seizures. In fact, as amended by voter initiative in the 2020 general election, Const 1963, art 1, § 11 specifically provides that “[n]o warrant to . . . access electronic data or electronic communications shall issue without describing them . . . .” However, defendant’s claims below rested solely on Fourth Amendment principles. Therefore, we have no occasion to consider whether the language of Const 1963, art 1, § 11 provides broader protection than the Fourth Amendment in this context. Compare People v Lucynski, 509 Mich 618, 634 n 6; 983 NW2d 827 (2022) (noting that Const 1963, art 1, § 11 is interpreted coextensively with the Fourth Amendment unless there is a compelling reason for a different interpretation), with People v Bullock, 440 Mich 15, 30-31; 485 NW2d 866 (1992) (concluding that a textual difference between the Eighth Amendment and Const 1963, art 1, § 16 supported a broader interpretation of our state constitutional provision)."
So really the downside is that the defendant's lawyer didn't raise the state constitutional issue (which looks even clearer).
They really didn't like it when cops showed up and took their furniture (think filing cabinet) because "it might contain evidence of sedition".
Absurd or not, it's what the Fourth Amendment requires, at least in spirit. The warrant must specify the scope of the search in advance ("...and particularly describing the place to be searched, and the persons or things to be seized.")
Police work is not supposed to be easy. When police work is easy, that's basically the definition of a police state.
No, this is silly. That's not how search warrants ever work. The Fourth Amendment imposes no such "only search where labeled" requirement. It does, however, mean that police can only search areas where they are likely to find evidence of the commission of the crime that is alleged in the affidavit. For example, if the crime is theft of a full-size refrigerator and police have probable cause to believe that the stolen refrigerator is located at the residence of the accused, they can go into his house and look for the refrigerator anywhere that a refrigerator could be. That does not, however, given them the right to go rifling through his file cabinet or his underwear drawer, unless they have specific, articulable facts (i.e., not just a hunch) that there is probable cause that some other evidence of the commission of that crime will be found in such places.
What does that look like when searching a suspect's cell phone? Obviously every case is going to be different, but the point is that warrants cannot be utterly boundless. Such "general warrants" are one of the reasons the American colonists listed as a grievance against King George in the Declaration of Independence and today issuing such warrants would be considered prosecutable malfeasance in office. if police want to use search warrants as evidence-gathering tools they have to follow the law or convince the legislature to change it.
EDIT: Actually, consider this as an example.
California Penal Code § 653m says the following (subsection b): "Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business."
So let's say jilted boyfriend decides to ring up his ex-girlfriend a couple dozen times in the wee hours of the morning, but he uses something to block his caller ID. In that case, there might be evidence on his phone that he dialed the girlfriend's phone number when she claims the harassing phone calls came in. So can the police search his phone for evidence that he called her number? Absolutely. Can they look through everything on his phone (pictures, notes, settings, etc.)? Absolutely not.
https://www.aclu.org/know-your-rights/border-zone
Also friendly reminder that "the Constitution does not grant aliens any protections when trying to enter the United States."
https://en.wikipedia.org/wiki/United_States_ex_rel._Knauff_v...
Since the western side of the state is quite obviously more than 100 miles from Canada I had to look this up. Apparently it's because the lakes count as international borders. That seems pretty crazy to me, especially in the case of Lake Michigan.