Courts are often faced with the dilemma of applying centuries, or even decades, old law to constantly evolving technological advancements. See, e.g., Transcript of Oral Argument, United States v. Microsoft, No. 17-2 (U.S. Feb. 27, 2018) (attempting to ascertain the relationship between the Stored Communications Act, a 1986 law, and modern cloud computing and storage capabilities—which simply did not exist in 1986) (available here). In a series of decisions, starting with Commonwealth v. Dorelas, the Massachusetts Supreme Judicial Court has addressed the constraints of law enforcement’s ability to conduct searches of digital storage devices—like cell phones. 473 Mass. 496, 43 N.E.3d 306 (2016). In Dorelas, a divided 4–3 Court held that photographs from a defendant’s iPhone were admissible when obtained pursuant to a broadly worded warrant that allowed officers to search the device for threatening communications.
The original warrant authorized a search of the defendant’s iPhone for evidence that was connected to threatening calls and text messages received by the victim. The defendant argued that, because the search went beyond the calls and text messages contained on the iPhone—and into the photographs application—it was overly broad, and the warrant itself failed to identify the area to be searched with sufficient particularity. The majority rejected those arguments; although, it recognized that given the “properties that render an iPhone distinct from the closed containers regularly seen in the physical world . . . what might have been an appropriate limitation in the physical world becomes a limitation without consequence in the virtual one.” As a result, searches of digital devices require “special care.” Nonetheless, the Court found that the photographs could have been associated with communications received by the victim and, thus, were within the scope of the probable cause exhibited by the government.
Contrarily, the dissent believed that the connection between the photographs retrieved by the government and the alleged threats was too tenuous. It contended that “there was no impediment to limiting the search to certain types and categories of files stored in specific sections of the iPhone’s data storage,” which would have sufficiently tailored the search’s scope, in their opinion. The dissent further emphasized that “the warrant could have limited the search only to the iPhone’s call records and text message files,” or it could have “limited the search of any image files temporally to include only images stored on the device in the days or weeks” that were relevant to the alleged crime.
Two more recent, and unanimous, decisions further illustrate the fact intensive nature of the Court’s inquiry into the underlying circumstances. In Commonwealth v. Morin, 478 Mass. 415, 85 N.E.3d 949 (2017), the Court determined that, in order to support a determination of probable cause, there needed to be more than just proof that the defendant communicated with someone else implicated in the crime. There, the defendant made several calls to his codefendant before and after the underlying homicide occurred, but the Court found that that evidence “established [no more than] a personal relationship between the [two]” and it failed to indicate “that the defendant’s cellular telephone would contain particular evidence related to the crime under investigation.” Accordingly, the Court ruled that there was not probable cause to search the defendant’s phone.
However, in Commonwealth v. Holley, 478 Mass. 508, 522, 87 N.E.3d 77, 91 (2017), the Court held that, because the government was able to establish that the victim communicated with the defendant in the hours leading up to his homicide and the shooting was likely connected to a drug deal—which the affidavit in support of the warrant indicated is often arranged by a telephone call—the Commonwealth established the requisite nexus between the criminal activity and the defendant’s cellular phone. The Court also considered the fact that, because the victim’s significant other stated that he ordinarily had his cellular phone on his person and his cellular phone was not found at the scene, it may have been removed in an attempt to hide evidence that would otherwise exist on the defendant’s phone. Based on the difference in the Court’s holdings in Morin and Holley, the nature of the communications alleged and the surrounding circumstances, in their entirety, will likely influence whether the government should be able to search a digital container.
It will be interesting to see how courts apply these principles to other varieties of crime. For example, if the crime alleged in Dorelas had been a white-collar crime—like insider trading—what restraints could have been placed on the government’s search? In that circumstance, pictures, calls, text messages, emails, and even social media applications could all reveal evidence related to the alleged crime. Based on the distinguishing features identified by the Court in Morin and Holley, it would appear that the nature of contacts alleged by the government will go a long way in determining the confines of the searchable content. However, one thing is certain, and that is that courts will continually be asked to apply traditional legal concepts to an ever expanding universe of technologically savvy litigants.