State v. Fairley

457 P.3d 1150

STATE of Washington, Respondent,

v.Zachary James FAIRLEY, Petitioner.

No. 35616-7-III

Court of Appeals of Washington, Division 3.

FILED FEBRUARY 18, 2020

PUBLISHED OPINION

Pennell, A.C.J. ¶1 Modern cell phones are unique devices, capable of storing vast amounts of personal data. To guard against governmental invasion of this information, the Fourth Amendment to the United States Constitution generally requires explicit authorization to search a cell phone through a court-issued warrant. Like other warrants, a cell phone warrant must be based on probable cause of criminal activity and must limit the scope of the cell phone search to the probable cause determination. Because the cell phone search at issue in this case did not comport with these criteria, we reverse.

BACKGROUND

¶2 In July 2013, the Pasco Police Department received reports of telephonic bomb threats directed at Columbia Basin College. An investigation led to a cell phone number associated with an individual named Steven Brown, who lived in Kennewick. On July 24, 2013, the Franklin County Superior Court issued a warrant authorizing law enforcement to search two areas: (1) Mr. Brown’s residence and (2) his Jeep Cherokee. The warrant was based on a probable cause affidavit indicating evidence of the crime of threats to bomb would be found at Mr. Brown’s property. The warrant authorized seizure of listed property, including Mr. Brown’s cell phone.¹ The warrant did not specifically authorize a search of the cell phone or any of the other listed items to be seized. No subsequent warrants were sought or obtained.

¶3 Despite the lack of an express authorization, law enforcement proceeded to search the contents of Mr. Brown’s cell phone. On December 31, 2013, forensic testing recovered 17 text messages sent to Mr. Brown’s phone from a number associated with Zachary Fairley. Although there was no indication Mr. Fairley was involved in the bomb threats, the recovered text messages revealed Mr. Fairley communicated with Mr. Brown’s daughter for purposes of prostitution. Mr. Fairley was then charged in Franklin County District Court with multiple misdemeanor offenses.

¶4 Mr. Fairley moved to suppress the text message evidence. The district court judge denied the motion on two bases: (1) Mr. Fairley did not have standing to object to the search of Mr. Brown’s phone and (2) "although the warrant said ‘seize’ and did not mention the term ‘search,’ " Clerk’s Papers (CP) at 98, it provided adequate authorization to search the phone.

¶5 Mr. Fairley exercised his right to a jury trial and was convicted of several charges. Mr. Fairley appealed to the Franklin County Superior Court. On September 6, 2017, the superior court affirmed Mr. Fairley’s convictions, including the search of the cell phone and seizure of his text messages, and dismissed the appeal. Unlike the district court, the superior court ruled Mr. Fairley had standing to challenge the search of Mr. Brown’s phone pursuant to State v. Hinton , 179 Wash.2d 862, 319 P.3d 9 (2014), and State v. Roden , 179 Wash.2d 893, 321 P.3d 1183 (2014). Nevertheless, the superior court concluded Mr. Fairley lost his expectation of privacy when the existing contents of Mr. Brown’s phone were divulged to law enforcement through "a valid search warrant." CP at 1171. The court rejected Mr. Fairley’s complaint that the warrant did not actually authorize a search by pointing out the purpose of the warrant "was to search the data stored in the cell phone" and reasoning the warrant "contained language routinely used by local courts and generally understood to allow for a search of the seized device." Id . The matter was then remanded to the district court pursuant to RALJ 9.2 for enforcement of the judgment and sentence.

¶6 Mr. Fairley sought discretionary review of the superior court’s order by this court pursuant to RAP 2.3(d). We granted review limited to the following issue:

Whether the search and seizure of Mr. Fairley’s text message conversation obtained on or about December 31, 2013, and utilizing special extraction tools, was outside the scope of the search warrant signed by the Honorable Carrie L. Runge on July 24, 2013, and in violation of the state and federal constitutions.

Order Granting in Part and Denying in Part Motion to Modify Commissioner’s Ruling, State v. Fairley , No. 35616-7-III, at 1 (Wash. Ct. App. Aug. 27, 2018). A panel of this court considered the matter after oral argument.

ANALYSIS²

¶7 The Fourth Amendment requires two components of a valid warrant: (1) it must be based on probable cause (supported by oath or affirmation), and (2) it must particularly describe "the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV.³ The second component is known as the particularity requirement. It was adopted as part of the Bill of Rights in order to protect against the abhorred "general warrant" and "writs of assistance" of the colonial period used by the British to justify indiscriminate exploratory rummaging of personal property. Warden, Maryland Penitentiary v. Hayden , 387 U.S. 294, 301, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967) ; State v. Perrone , 119 Wash.2d 538, 545, 834 P.2d 611 (1992). The Fourth Amendment’s particularity requirement provides important protection against governmental invasion of privacy because it "makes general searches ... impossible and prevents the seizure of one thing under a warrant describing another." Marron v. United States , 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231 (1927). The particularity requirement ensures judicial oversight of the scope of a law enforcement search such that "nothing is left to the discretion of the officer executing the warrant." Id .

¶8 The Fourth Amendment’s restrictions on law enforcement searches and seizures apply to all types of personal property, including cell phones. Hayden , 387 U.S. at 300-02, 87 S.Ct. 1642 ; see also Riley v. California , 573 U.S. 373, 385-86, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). In fact, because these electronic devices are repositories for expressive materials protected by the First Amendment, the Fourth Amendment’s particularity requirement is of heightened importance in the cell phone context. State v. McKee , 3 Wash. App. 2d 11, 24-25, 413 P.3d 1049 (2018), rev’d on other grounds , 193 Wash.2d 271, 438 P.3d 528 (2019) ; United States v. Russian , 848 F.3d 1239, 1245 (10th Cir. 2017) ; State v. Henderson , 289 Neb. 271, 288, 854 N.W.2d 616 (2014), cert denied , ––– U.S. ––––, 135 S. Ct. 2845, 192 L.Ed.2d 881 (2015) ; see also Perrone , 119 Wn.2d at 547, 834 P.2d 611 ("[T]he degree of particularity demanded is greater" when a warrant is aimed at "materials protected by the First Amendment."); Buckham v. State , 185 A.3d 1, 18 (Del. 2018) ("[W]arrants issued to search electronic devices call for particular sensitivity.").

¶9 With these principles in mind, we turn to the question of whether the cell phone data search here was authorized by a proper warrant. Our review of this legal issue is de novo. Perrone , 119 Wash.2d at 549, 834 P.2d 611 ; In re Det. of Petersen , 145 Wash.2d 789, 799, 42 P.3d 952 (2002).

¶10 It is readily apparent the warrant here did not authorize a search of the contents of Mr. Brown’s cell phone. While law enforcement undoubtedly obtained the warrant in hopes of conducting a search, permission to search the phone was neither sought nor granted. Russian , 848 F.3d at 1245 (Authorization to seize a cell phone does not confer authorization to search.). As explained in Riley , the privacy interests implicated by a cell phone seizure are much different from those of a search. 573 U.S. at 393-94, 134 S.Ct. 2473. Modern cell phones are akin to powerful "minicomputers." Id . at 393, 134 S. Ct. 2473. They contain information touching on "nearly every aspect" of a person’s life "from the mundane to the intimate." Id . at 395, 134 S. Ct. 2473. A cell phone search will "typically expose to the government far more than the most exhaustive search of a house." Id . at 396, 134 S. Ct. 2473. Given this potential exposure to private information, authorization to search the contents of a cell phone does not automatically follow from an authorized seizure. Id. at 403, 134 S. Ct. 2473. Instead, law enforcement officers must obtain a warrant that complies with the Fourth Amendment’s particularity requirement. See id .⁴

¶11 To hold that authorization to search the contents of a cell phone can be inferred from a warrant authorizing a seizure of the phone would be to eliminate the particularity requirement and to condone a general warrant. This outcome is constitutionally unacceptable. The particularity requirement envisions a warrant will describe items to be seized with as much specificity as possible. Narrow tailoring is necessary to prevent "overseizure and oversearching" beyond the warrant’s probable cause authorization. Henderson , 289 Neb. at 289, 854 N.W.2d 616 ; see also United States v. Spilotro , 800 F.2d 959, 964 (9th Cir. 1986) ; Perrone , 119 Wash.2d at 548, 834 P.2d 611 ; McKee , 3 Wash. App. 2d at 28-29, 413 P.3d 1049. A search warrant allowing for a "top-to-bottom search" of a cell phone fails to meet this requirement. Buckham , 185 A.3d at 18-19 ; see also Henderson , 289 Neb. at 289, 854 N.W.2d 616.

¶12 Rather than allowing law enforcement officers to operate through inferences, the Fourth Amendment demands a cell phone warrant specify the types of data to be seized with sufficient detail to distinguish material for which there is probable cause from information that should remain private. For example, in addition to identifying the crime under investigation, the warrant might restrict the scope of the search to specific areas of the phone (e.g., applications pertaining to the phone, photos, or text messages), content (e.g., outgoing call numbers, photos of the target and suspected criminal associates, or text messages between the target and suspected...