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A search warrant can’t be based on hunch suspect owns cellphone


A search warrant can’t be based on hunch suspect owns cellphone

On behalf of Patrick T. McNally, Attorney at Law | 
August 24, 2017

In order to be legal, a search warrant must be based on probable cause. In other words, the officers seeking the warrant need to document a good reason to believe that evidence of criminal activity is likely to be found in a particular location.

To search someone’s home, for example, it’s not enough that the person is suspected of a crime and has a home that could be searched. Probable cause means there must be a specific reason for the police to believe that certain evidence is in that home.

It’s not enough to assume the suspect owns a cellphone, either, the influential D.C. Circuit Court of Appeals ruled recently. Sure, most people do — but a warrant based on that assumption is unconstitutional.

The case before the court involved a man who was suspected of being a getaway driver in another crime. Perhaps in an effort to obtain a broadly worded warrant that would justify most any type of search, the District of Columbia police sought — and received — a warrant to search the man’s residence for his cellphone or other electronic devices.

Upon arriving at the man’s residence, the police collected a gun that had apparently been thrown from a window. Unfortunately, the man had a criminal record that precluded him from possessing a gun.

Although it seems no evidence was found that the man was the getaway driver as suspected, he was charged with and convicted of possession of a firearm by a felon.

The appeals court threw that gun out, so to speak. They ruled that the warrant had been unconstitutionally vague and, since the government isn’t allowed to benefit from constitutional violations, the gun could not be admitted as evidence. With no gun in evidence, the man’s criminal conviction was overturned.

“The assumption that most people own a cell phone would not automatically justify an open-ended warrant to search a home anytime officers seek a person’s phone,” reads the 2-1 ruling by a three-judge panel.

Allowing police to search a person’s entire home whenever they think potential evidence might be found on a cellphone is unreasonable. The Fourth Amendment guarantees us freedom from unreasonable searches and seizures by the government.

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