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Riley v. California Requires Police to Obtain a Search Warrant Prior to Viewing/Analyzing Data on Cellular/Digital Devices

Brian L. Polinske
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Edwardsville Criminal Defense Trial Lawyer

As of 2014 the police must obtain a search warrant prior to analyzing data on a digital device.  This type of investigatory search is very common.  The normal software used to conduct such a search is Cellebrite. Cellebrite analyzes and organizes data on a digital device.  It can organize emails, texts, sms, photos, memes, and any other message (image) sent, created, or received on the device.  Most cell phones have data on it for more years than the device has been used.  If its connected to the Cloud there can be very old photos or messages stored on the device or in the Cloud that can be accessed via software.  This fact has caused concern in the SCOTUS as stated in Riley as to how much data can be retrieved and what protections exist to avoid search/seizure of the items during a search that are not relevant to the investigation.  

In Illinois there are no cases that have developed the law from Riley other than to simply restate a search warrant is required prior to a search.  Other issues have been developed in the 9th, 2nd, and DC circuits that are trending towards requiring law enforcement to limit the scope of the search of a device to avoid seizing irrelevant data.  There are softwares that allow for particularized capture of such data.  In my practice I have not yet seen law enforcement use such software however when analyzing a device.  

The manner in which a search warrant is typically obtained in Illinois is a complaint is submitted to the Court to establish probable cause.  The Court is supposed to carefully review the affidavit and make a ruling whether probable cause to issue the warrant exists.  If the Court decides probable cause exists it issues the warrant.  A specific date and time is placed on the warrant.  In Illinois a 96 hour for execution is established by statute.  After execution of the warrant a return is filled out describing what property was seized and it is filed with the court in a separate court file.

Issues that need to be addressed:

1.  Can police keep a device in the evidence locker outside the time necessary to analyze the data?

2. Can police reanalyze the device at a later date should improved software be developed?

3. Must police conduct the analysis with specific protocols in place to avoid searching irrelevant data?

4. If police seize irrelevant information what steps will they take to destroy it?

5. Must a search warrant be specific and particular enough to describe only the data it requests seizure thereof?

The circuits identified above are working on case precedent to answer the above questions.  Unfortunately for us in Illinois our courts are very slow to develop similar precedent.  Even though this aspect of a criminal investigation has become very common and needs answers, I anticipate we will not have answers for many years in Illinois.  

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