A case in the California Court of Appeal, People v. Rangel, held that a police officer could read text messages from the Defendant’s cell phone. The detective did indeed have a search warrant, but its antiquated wording provided an avenue for the Defendant’s counsel to attempt an appeal. The warrant stated the following:
Gang related paraphernalia typically retained by gang members can also appear in other forms, including but not limited to, newspapers, artwork, compact disks, audio and videocassette, cameras, undeveloped film, address books, telephone lists, graffiti collections, and magazines.
Case law does indeed set a precedent for allowing warrants of this nature to authorize the search of a laptop computer, even if the word “computer” is not explicitly listed in the warrant. In an extension of this existing case law, the appeals court ruled that smart phones can be treated in the same manner:
A smartphone such as appellant’s is akin to a personal computer because it has the capacity to store people’s names, telephone numbers and other contact information, as well as music, photographs, artwork, and communications in the form of e-mails and messages—all of which may amount to gang indicia, depending on their content. As such, appellant’s phone was the likely container of many items that are the functional equivalent of those specifically listed in the warrant.
This decision seems logical enough, but it warrants the question: Do criminal search warrants need to be updated for a new technological age? It’s difficult to imagine modern gang members whipping out their VHS camcorders to document their latest exploits when smart phones that produce higher quality, digital videos are readily available. It is equally silly to picture gang members making widespread use of audio-cassettes and film cameras. This entire appeal case could potentially have been avoided with wording that includes such ubiquitous data-holding devices as cell phones, computers, and flash drives, or that at least recognizes the existence of digital audio and video files and contact lists.
The legal system’s reluctance to adjust boilerplate language to better fit the times notwithstanding, the detective’s method of reading the text messages does have serious implications beyond simply whether or not it should be allowed. Opening the Defendant’s text messages directly from the cell phone alters potentially important metadata, such as who accessed the device and what files they looked at, and creates chain-of-custody issues that are no laughing matter. There are a plethora of methods for imaging cell phones or obtaining cell phone records directly from service providers that would still allow the detective full access to the text messages and other information in the Defendant’s smart phone but that do not contaminate any evidence. Joshua Gilliland at BowTieLaw points out that the U.S. Military images phones used to detonate IEDs while under gunfire. There seems to be no reason that investigators who do not have to worry about bullets or explosions while collecting evidence could not image a phone and keep the data chain intact.