Opinion
No. 20 M 684
2021-05-14
In the MATTER OF the SEARCH OF: a SINGLE-FAMILY HOME
AUSA, Caitlin S. Walgamuth, United States Attorney's Office, Chicago, IL, for United States of America.
AUSA, Caitlin S. Walgamuth, United States Attorney's Office, Chicago, IL, for United States of America.
MEMORANDUM OPINION AND ORDER
John Z. Lee, United States District Judge Following a long-term investigation, the government applied for a warrant to search a house for evidence related to the suspected possession and distribution of child pornography by one of its residents in violation of 18 U.S.C. §§ 2251(d), 2252, and 2252A. The duty magistrate judge granted the government's request to search the premises, as well as to seize and later search any electronic devices—other than cell phones—found inside. As for cell phones, however, the magistrate judge permitted the government only to seize and search any cell phones that the agents reasonably believe belong to, or are regularly used by, the suspected individual, who lives at the residence along with his wife and child. As for any other cell phones found in the residence, the magistrate judge denied the government's application, finding that it had failed to establish probable cause that such cell phones would contain evidence of the suspected offenses.
Believing it to be an overly restrictive application of Fourth Amendment law, the government asks the Court to review the magistrate judge's order. For the following reasons, the order is affirmed.
The following facts are summarized from the magistrate judge's order, which, in turn, recapped the government's affidavit. For present purposes, the Court assumes these facts to be true and draws all reasonable inferences from them. See Illinois v. Gates , 462 U.S. 213, 240, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ("The essential protection of the warrant requirement of the Fourth Amendment ... is in requiring that the usual inferences which reasonable [persons] draw from evidence be drawn by a neutral and detached magistrate ...." (cleaned up)).
In early 2020, the Federal Bureau of Investigations ("FBI"), through the work of an undercover officer ("UCO"), determined that the suspected individual ("Subject One") was distributing child pornography on an internet platform ("the Platform") that allows users to create groups and share content with other members. 1/22/21 Am. Sealed Order ("Magistrate Judge Order") at 2, ECF No. 5. Although the Platform affords a degree of anonymity to users, it assigns each user a unique numeric identifier that remains constant. Id.
At the initial phase of the investigation, the UCO discovered that Subject One was a member of several groups whose members shared child pornography through hyperlinks and drop boxes. Id. The UCO noted that Subject One took an active role in monitoring one group in particular, leading the UCO to conclude that Subject One "was responsible for reviewing links, photos, and videos posted [to this group] by other members to confirm the content contained child pornography." Id.
In the spring of 2020, the UCO observed Subject One's user account post a hyperlink within the group. Id. When the UCO accessed the hyperlink, it led to numerous images and videos of child pornography. Id. Nine of the videos that the UCO reviewed contained known child pornography victims. Id.
The FBI ultimately linked the user account in question to Subject One by tracing the numeric identifier assigned by the Platform to an email address that had been created by an individual with Subject One's date of birth; the individual also had used an alternative email address and a cell phone number that were linked to Subject One. Id. at 3. Furthermore, the IP address used to access the account was registered to Subject One at the residence in question. Id. In all, the FBI's analysis of login information showed that Subject One's user account had been accessed over 1,700 times during an approximately five-month period from winter to summer of 2020. Id. And the FBI had reason to believe that Subject One used a number of electronic devices, including an Apple iPhone or other Apple branded device, to access the account. Id.
Based on the UCO's affidavit, the government applied for a search warrant on December 31, 2020. The magistrate judge found that the affidavit established probable cause to search the residence of Subject One and to seize and later search all electronic devices found therein, with the exception of cell phones not "belonging to or controlled by Subject One." Id. at 6.
In singling out cell phones, the magistrate judge relied on the heightened privacy interest that an individual has in her cell phone as articulated by the Supreme Court in Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). There, the Supreme Court held that law enforcement officers "must generally secure a warrant"—and so establish probable cause—before conducting a search of data on a cell phone, even when the search is incident to an arrest. Magistrate Judge Order at 6 (quoting Riley , 573 U.S. at 386, 134 S.Ct. 2473 ).
Here, the magistrate judge "[did] not believe that the government ha[d] established probable cause that cell telephones possessed by individuals other than Subject One may contain evidence of a criminal offense or contraband." Id. at 1. This was so because the government had submitted "no information about any other individual associated with [the residence] who might be involved in, or even aware of, the possession and distribution of child pornography that Subject One is seemingly engaged in," nor "any basis [to] support a reasonable inference that others who reside at or may be found at [the residence] would have information or evidence on their respective cell phones of Subject One's likely criminal conduct." Id. at 3.
To the contrary, the magistrate judge noted, "much of the boiler plate language [in the government's affidavit] suggests the opposite—that Subject One would conceal his criminal conduct from others." Id. For instance, the affiant asserted that the majority of individuals who possess child pornography "may go to great lengths to conceal and protect from discovery, theft, and damage their collections of illicit materials." This, concluded the magistrate judge, supported the inference that "most collectors of child pornography hide their conduct from individuals with whom they live." Id. at 4–5 (emphasis removed). Thus, the magistrate judge found that the affidavit demonstrated "[a]t best ... that determining which cell phones belong to or are regularly used by Subject One may be difficult to ascertain." Id. at 6.
To address the magistrate judge's concern, the government argued that agents would not search any cell phones they could affirmatively identify as being used exclusively by someone other than Subject One. Id. at 7. But the magistrate judge identified two "fatal flaw[s]" in this argument. First, he noted that the government's approach inverted Riley ’s presumption that cell phones ab initio are protected from governmental inspection absent sufficient justification. Id. Second, the magistrate judge asserted that the government's proposal left the determination of which cell phones may be seized and searched "completely to the agents’ discretion" in contravention of the Fourth Amendment's particularity requirement. Id. at 8.
Alternatively, the government proposed conducting a cursory search of any cell phone found in the house before engaging in a full review, as a means of ascertaining whether it belongs to Subject One or someone else. But the magistrate judge rejected this as well, stating that the Seventh Circuit "has already found such conduct to violate the Fourth Amendment." Id. at 9 (citing United States v. Jenkins , 850 F.3d 912, 920 (7th Cir. 2017) ).
After the magistrate judge issued his order, the government filed a motion to reconsider, supported by an amended affidavit, asserting that the magistrate judge had erred in not permitting it to seize and search all cell phones "that appear capable of containing evidence, contraband, instrumentalities and information related to Subject One's child pornography offense." Gov't’s Sealed Mot. at 2, ECF No. 3. The magistrate judge denied the motion, finding no reason to depart from his earlier ruling that the government may seize and search only those cell phones "that belong to or are regularly used by Subject One, based on the agents’ reasonable belief as to the phones that meet this description." Magistrate Judge Order at 17.
The government then filed this request for review of the magistrate judge's order pursuant to Local Criminal Rule 50.4.
While such a review would ordinarily occur ex parte , the Court requested assistance from the Federal Defender Program in the form of an amicus brief in support of the magistrate judge's order. The Court is grateful to the Federal Defender Program—and especially the authors of the amicus brief, William Hardwicke and Daniel McLaughlin—for the excellent service in fulfilling the Court's request.
II. Legal Standard
Pursuant to Local Criminal Rule 50.4, review of an order entered by the duty magistrate judge in proceedings directly assigned thereto under Local Criminal Rule 5.1 "shall be heard by the emergency [district] judge." LCrR.50.4. In reviewing an order on a warrant application, the district judge "afford[s] great deference" to the magistrate judge's findings as to probable cause, which must be upheld so long as they are supported by "a substantial basis." See United States v. Aljabari , 626 F.3d 940, 944 (7th Cir. 2010) (cleaned up); see also Gates , 462 U.S. at 238–39, 103 S.Ct. 2317 ("[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." (cleaned up)). At the same time, the district judge reviews the magistrate judge's order de novo "insofar as it presents questions of law under the Fourth Amendment." United States v. Sewell , 780 F.3d 839, 845 (7th Cir. 2015).
III. Analysis
As an initial matter, it is important to note what the government does not challenge in requesting review of the magistrate judge's order. First, the government does not challenge the magistrate judge's determination that, with regard to cell phones within the residence, probable cause extends only to those phones belonging to or regularly used by Subject One. As the magistrate judge noted, the government's affidavit is devoid of facts to "support a reasonable inference that others who reside at or may be found at [the home] would have information or evidence on their respective cell phones of Subject One's likely criminal conduct." Magistrate Judge Order at 3 (emphasis added). To the contrary, the affidavit "suggests the opposite—that Subject One would conceal his criminal conduct from others." Id. ; see also id. at 4–5. Conceding as much, the government recognizes that only those cell phones "used" by Subject One are "likely to contain evidence of his offenses." See Gov't’s Sealed Mot. at 10, ECF No. 7.
Instead, the government targets its objections to the magistrate judge's requirement that it must have a reasonable belief that a given cell phone belongs to or is regularly used by Subject One, before it may seize and search the phone. In so doing, the government leans on the rule that "[a] lawful search of fixed premises generally extends to an entire area in which the object of the search may be found," including the authority "to open closets, chests, drawers, and containers." United States v. Ross , 456 U.S. 798, 820–21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Thus, in the government's view, it may seize and search any cell phones found in the house that "appear capable of containing evidence, contraband, instrumentalities, and information relating to the Subject Offenses." Gov't’s Ex. 1, 1/21/21 Search Warrant Application, Att. B, List of Items to Be Seized ¶ 17, ECF No. 7. And that includes any cell phone that "has not been affirmatively identified by agents as exclusively used by someone other than [Subject One]." 1/21/21 Search Warrant Application ¶ 50, ECF No. 7.
But, as the Supreme Court recognized in Ross , the scope of a search "is not defined by the nature of the container in which the contraband is secreted," but rather "by the object of the search and the places in which there is probable cause to believe that it may be found." 456 U.S. at 824, 102 S.Ct. 2157. For instance, "[j]ust as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase." Id. And "[p]robable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab." Id.
The Fourth Amendment's concern for protecting an individual's privacy from unreasonable governmental intrusion is particularly acute when it comes to a private residence. See, e.g. , Silverman v. United States , 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ("At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."); Florida v. Jardines , 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ("[W]hen it comes to the Fourth Amendment, the home is first among equals"). And this concern is only amplified here by the fact that what the government is seeking to search are cell phones—devices that "are not just another technological convenience," but rather microcomputers that, for many Americans, hold "the privacies of life." See Riley , 573 U.S. at 403, 134 S.Ct. 2473 (cleaned up); see also United States v. Griffith , 867 F.3d 1265, 1276 (D.C. Cir. 2017) (recognizing that, while courts "have allowed more latitude in connection with searches for contraband items like weapons or narcotics," searches for "innocuous objects" like cell phones must be "conducted in a manner that minimizes unwarranted intrusions upon privacy" (cleaned up)). In this way, the magistrate judge's sensitivity to the core privacy interests that the government seeks to invade is well-grounded in Riley and its progeny.
Indeed, as the Supreme Court observed, the unique capabilities of cell phones, as well as their size and portability, make them "cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers" all at once, id. at 393, 134 S.Ct. 2473, and their pervasiveness in our daily lives might make "the proverbial visitor from Mars [ ] conclude that they were an important feature of the human anatomy," id. at 385, 134 S.Ct. 2473.
For its part, the government appears to read the magistrate judge's order to mandate a sort of "super-warrant" for cell phones, suggesting that the order requires the government to obtain a separate and independent warrant for such devices, even in the presence of probable cause to believe that they would contain evidence of the suspected crimes. See, e.g. , Gov't Sealed Reply Supp. Mot. at 8, ECF No. 11. And were it the case, the government would be correct: no such separate and independent warrant requirement for cell phone exists under the Fourth Amendment, even after Riley . But this is strained reading of the magistrate judge's order.
Rather, after carefully considering the evidence, the magistrate judge determined that, while the government had established probable cause that cell phones owned or regularly used by Subject One were reasonably likely to contain evidence of child pornography, it had fallen short of establishing probable cause that cell phones possessed by individuals in the home other than Subject One would do the same. Indeed, the magistrate judge made a point of stating that his findings may well have been different "[i]f the affidavit contained information about others who lived with Subject One that would suggest that these other individuals were also involved in the collection and/or distribution of child pornography." Id. at 4 n.2. These findings have ample support in the record, and the Court must give them "great deference." See Aljabari , 626 F.3d at 944.
See, e.g. , Magistrate Judge Order at 1 ("[T]his Court does not believe that the government has established probable cause that cell telephones possessed by individuals other than Subject One may contain evidence of a criminal offense or contraband."); id. at 3 ("The affidavit contains no information about any other individual associated with [the residence] who might be involved in, or even aware of, the possession and distribution of child pornography that Subject One is seemingly engaged in."); id. at 5 ("The affidavit contains no other facts or general background information to support the assertion that other individuals who might be found at [the residence] would have child pornography or evidence of child pornography possession or distribution on their cell phones."); id. at 13 ("For the reasons previously explained, we do not infer that this repeated use by Subject One of his cell telephone suggests that phones owned or controlled by others would contain evidence of Subject One's alleged criminal conduct."); id. at 16 ("Rather, the government has established probable cause as to [the residence], and to Subject One's cell phones and those phones he regularly used. That solid probable cause showing does not transcend to all cell phones that happen to be present when agents execute the search warrant.").
Considered in its entirety, then, the magistrate judge's order did not (as the government suggests) find probable cause to search everywhere and seize everything in Subject One's residence, only to require the government to obtain additional warrants for the cell phones in question. Rather, the magistrate judge found that the government had not satisfied its initial burden to establish probable cause that any cell phones belonging to individuals other than Subject One would contain evidence of Subject One's alleged criminal activity. In doing so, the magistrate judge tread upon well-trodden legal ground.
The D.C. Circuit's decision in Griffith is illustrative. In Griffith , the defendant challenged the validity of a warrant that "authorized the wholesale seizure [and subsequent search] of all electronic devices discovered in [an] apartment, including items owned by third parties." 867 F.3d at 1270–71. The court held that the warrant "was unsupported by probable cause and unduly broad in its reach," id. at 1271, because (among other things) the affidavit furnished no reason to suspect that any cell phones or other electronic devices belonging to third parties would contain incriminating evidence, id. at 1275–76. The Griffith court went on to observe that the warrant "must be tailored to the justifications for entering the home," especially where the government seeks out "otherwise lawful objects" like electronic devices, as opposed to "contraband items like weapons or narcotics." Id. at 1276 (cleaned up). As a result, the court cautioned that the warrant "should have limited the scope of permissible seizure to devices owned by [the defendant]" or otherwise "linked to the [suspected offense]." Id. The same principles apply here.
What is more, consistent with the reasoning in Griffith , it is not uncommon for courts to limit the reach of searches pursuant to a warrant to cell phones or other electronic devices that "belong to" the subject of the government's investigation. See, e.g. , Shopbell v. Wa. State Dep't of Fish & Wildlife , No. 2:18-CV-1758, 2020 WL 3971395, at *2 (W.D. Wash. July 14, 2020) ; Varlitskiy v. Cty. of Riverside , No. EDCV19-2099, 2020 WL 4187769, at *2 (C.D. Cal. Apr. 23, 2020) ; United States v. Wilson , No. 1:16-CR-274, 2020 WL 638690, at *1 (N.D. Ga. Feb. 7, 2020) ; United States v. Dyer , No. 1:17-CR-226, 2019 WL 6218899, at *3 (M.D. Pa. Nov. 21, 2019) ; United States v. Keys , No. CR. S-13-82, 2014 WL 1232234, at *2 (E.D. Cal. Mar. 23, 2014) ; United States v. Russell , No. CR. A. 10-186-1, 2011 WL 1603379, at *1 (E.D. Pa. Apr. 27, 2011), aff'd , 604 F. App'x 193 (3d Cir. 2015). Even the case that the government cites from this district limits the devices searched to those "reasonably believed to be possessed or used by the suspect." See In re Search Warrant Application for the Search of a Townhome Unit , No. 20 M 106, 2020 WL 1914769, at *4 (N.D. Ill. Apr. 20, 2020) ; see also In re Residence in Oakland , 354 F. Supp. 3d 1010, 1014 (N.D. Cal. 2019) (stating that "any resubmission must be limited to those devices reasonably believed by law enforcement to be owned or controlled by the two suspects identified in the affidavit" in denying warrant application as overbroad).
It is worth noting that the government's own brief at times recognizes that it may search only those cell phones "reasonably believed to be linked to the offenses under investigation"—i.e. , those reasonably believed to be linked to Subject One's own possession or use. See, e.g. , Gov't’s Sealed Mot. at 15. That is precisely what the magistrate judge's order allows. As to the government's assertion that "it is reasonable to believe that any Internet-capable cell phone found in [the residence] that is not identified as a third party's phone was in fact used by Subject One or contains evidence of the Subject Offenses," id. at 11, the magistrate judge arrived at a different conclusion, finding that, simply because a cell phone happens to be in the residence at the time of the search, this does not mean that the phone would contain evidence of a crime, unless it was owned or regularly used by Subject One, see Magistrate Judge Order at 13–14. Again, this determination finds support in the record and merits deference on review.
Granted, in attempting to delineate whether and under what circumstances the government can search a third party's personal effects other than cell phones when conducting a premises search, courts have struggled to articulate an overarching rule, imputing varying degrees of privacy depending on the facts at hand. Compare United States v. Robertson , 833 F.2d 777, 784 (9th Cir. 1987) ("The Supreme Court and other courts have repeatedly recognized that containers such as backpacks are so closely associated with one's person that a search of them must be supported by a warrant ... or by one of the exceptions to the warrant requirement."), and Hummel-Jones v. Strope , 25 F.3d 647, 651 (8th Cir. 1994) (holding that search of personal bags of visitors based on premises warrant violated Fourth Amendment), with United States v. Gonzalez , 940 F.2d 1413 (11th Cir. 1991) (holding that the government properly searched visitor's briefcase during search of premises for documents related to drug trafficking); see generally Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.10(b) (6th ed. 2020) (collecting cases employing different approaches and arriving at different results). And, given the factual nature of the Fourth Amendment's reasonableness inquiry, a categorical rule may be impractical. After all, the container rule articulated in Ross applies only "generally." See 456 U.S. at 820–21, 102 S.Ct. 2157.
The Seventh Circuit's own case law addressing whether a warrant to search a premises extends to third-party-owned containers is scarce and offers little guidance here. For example, in United States v. Percival , the court held that the government's search of a vehicle in the defendant's garage for drugs pursuant to a premises warrant was constitutional, citing Ross for the proposition that "a lawful search of fixed premises generally extends to every part of the premises in which the object of the search may be found, notwithstanding the fact that separate acts of opening or entry may be required to complete the search." 756 F.2d 600, 612 (7th Cir. 1985). But the court then went on to limit its holding to "the search of vehicles owned or controlled by the owner of, and found on, the premises." Id.
Later, in United States v. Evans , Judge Posner, writing for the court, appeared to excise this portion of Percival ’s holding, stating:
It seems to us that a car parked in a garage is just another interior container, like a closet or a desk. If, as in this case, the trunk or glove compartment is not too small to hold what the search warrant authorizes the police to look for, they can search the trunk and the glove compartment. That, we think, is the holding of Percival ; it is not tied to ownership.
92 F.3d 540, 543 (7th Cir. 1996). Perhaps thinking this rule too draconian, however, he went on to offer a diluted formulation of Percival , announcing that the rule would not apply to cars in "public garages" or a "garage in an apartment house." See id. at 544 ("Having a warrant to search a person's apartment ‘and garage’ does not entitle the police to search every car in the garage of the apartment house").
It is in this uncertain realm of container law that the Supreme Court's ruling in Riley proves helpful to answer the question at hand. What is clear post- Riley is that individuals possess a robust privacy interest in their cell phones—one stronger than they have in a typical container. See United States v. Wanjiku , 919 F.3d 472, 484 (7th Cir. 2019) (noting that "the Supreme Court has recently granted heightened protection to cell phone data"). Indeed, as the Supreme Court recognized, "[t]reating a cell phone as a container" is at best "a bit strained." Riley , 573 U.S. at 397, 134 S.Ct. 2473. And this makes sense. Under the traditional articulation of the container rule, so long as a container inside a residence is large enough to contain evidence of the crime at issue, it is fair game during a premises search. See Evans , 92 F.3d at 543. But, because cell phones are uniquely capable of containing incriminating information (whether in the form of pictures, e-mail messages, documents, or other data) "regardless of when the crime occurred," the traditional rule "would prove no practical limit at all when it comes to cell phone searches." See Riley , 573 U.S. at 399, 134 S.Ct. 2473 (employing the same reasoning to reject the proposal that a cell phone may be searched incident to arrest "whenever it is reasonable to believe that the phone contains evidence of the crime of arrest").
In fact, the Supreme Court goes on to observe, "A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is." Id.
Adding to this is Riley ’s core teaching that, even when an individual has a diminished expectation of privacy in other belongings (such as during an arrest), the individual's privacy interest in his or her cell phone remains protected by the requirement of probable cause. See id. at 386, 134 S.Ct. 2473 (refusing to extend to cell phones the general rule articulated in United States v. Robinson , 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), that persons and personal property may be searched incident to arrest). It stands to reason that probable cause also is needed to search cell phones found in a residence during a premises searched based on a warrant, even if they may be capable of containing evidence of the suspected crime. That is especially so here, given that the cell phones may well belong to persons whom the government has no reason to suspect. Cf. Ybarra v. Illinois , 444 U.S. 85, 91–92, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (holding that patrons of a tavern being searched pursuant to a warrant could not be personally searched absent probable cause to believe they were involved in the suspected crime); United States v. Pace , 898 F.2d 1218, 1240 (7th Cir. 1990) (holding similarly that visitors of a house being searched pursuant to a warrant could be personally searched only after there was probable cause to suspect their involvement).
What does this mean in practice? It means that when the government believes a residence might contain a number of cell phones belonging to different people in the home, it cannot seize and search all of the cell phones it finds in the home based solely on a blanket warrant authorizing the seizure and search of any item that may contain evidence of the suspected crime. See Townhome Unit , 2020 WL 1914769, at *5 ("[T]he search and seizure of all electronic devices, which include cell phones, as a result of [their] mere presence inside a premises to be searched is no longer permissible post- Riley ."). Rather, the government must demonstrate probable cause to believe that a particular cell phone or class of cell phones was used in the commission of the crime or would contain evidence of the crime. In this case, the magistrate judge correctly applied this rule and found that the government met this burden only as to cell phones that belong to or are regularly used by Subject One.
In response, the government contends that such a rule is unworkable, because agents cannot determine whether a cell phone belongs to or is used by a particular individual without accessing its contents. But the Fourth Amendment requires only a reasonable basis to believe this is so, not absolute certainty. See Aljabari , 626 F.3d at 948 ("[A]n executing officer must interpret a warrant's terms reasonably, but the officer need not give them the narrowest possible reasonable interpretation."). Thus, the government is not limited only to those cell phones that it can unquestionably tie to Subject One; rather, it may seize and later search any cell phones within the residence so long as it has a reasonable basis to believe, given the totality of the circumstances, that the phones belong to or are regularly used by Subject One.
For example, solely by way of illustration, consider a scenario in which the agents find a cell phone on the person of the targeted individual or in close proximity to that individual's desk or bedside table (or what reasonably appears to be such). Absent other indicia to the contrary, the agents may reasonably conclude that the phone belongs to or is regularly used by the targeted individual. Similarly, where the government has shown that the targeted individual tends to hide his or her criminal activities from others, the agents may reasonably conclude that a cell phone found hidden under a mattress, sequestered in box, or stuffed between books in a bookcase, belongs to or is regularly used by that individual. By contrast, if a cell phone bearing no identifying traits is lying alone on a coffee table in the living room, far from anyone, with no indication that the targeted individual has used it, it may not be reasonable, without more, for the agents to believe that it belongs to that individual. While such circumstances might not be dispositive in and of themselves, they certainly would be significant factors to consider when evaluating the totality of the circumstances.
The Court realizes that this rule may make it more difficult for the government to uncover evidence of criminal activity. But, as the Supreme Court has emphasized, "[p]rivacy comes at a cost," Riley , 573 U.S. at 401, 134 S.Ct. 2473, and the burden is not insurmountable. For instance, if the government has reason to believe that the suspected individual was conspiring with other residents to commit criminal activity, or that other residents were knowingly acquiescing in the crime, the government can include such facts in its warrant application, and the magistrate judge can decide whether probable cause exists to allow for the seizure and search of other cell phones in the home. And such information could be obtained through various investigative techniques, such as pre-search surveillance focused on the devices used in the crime, dialing known phone numbers while suspected individuals are home, or questioning individuals present at the time of the search. See Townhome Unit , 2020 WL 1914769, at *5. What the Fourth Amendment does not permit the government to do is to sidestep this requirement altogether by means of "a blanket authorization to search for and seize all electronic devices." See Griffith , 867 F.3d at 1276.
The cases upon which the government relies do not mandate a different result. For example, in United States v. Reichling , the Seventh Circuit found that the government properly seized and searched electronic storage media, after affording "great deference" to the issuing judge's determination that there was probable cause to believe such devices would uncover evidence of child sexual exploitation. See 781 F.3d 883, 886–88 (7th Cir. 2015) (cleaned up). Such was the case also in United States v. Grinder , No. CR 17-226, 2018 WL 2943235, at *3–5 (D. Md. June 12, 2018), aff'd , 808 F. App'x 145 (4th Cir. 2020) ; and United States v. Hernandez , No. 19 CR 97, 2020 WL 3257937, at *37–38 (S.D.N.Y. June 16, 2020).
In other cases cited by the government, the challenged warrants allowed the government to search only the defendants’ own cell phone or other electronic devices. See United States v. Bishop , 910 F.3d 335, 336–37 (7th Cir. 2018) (upholding a warrant that "described the ‘place to be searched’ " as the defendant's cell phone); Archer v. Chisholm , 870 F.3d 603, 617 (7th Cir. 2017) (noting that the warrant authorized the seizure of "any computer or electronic communication device of [the defendant]"); United States v. Neuhard , 149 F. Supp. 3d 817, 823–24 (E.D. Mich. 2016) (upholding a warrant to search the defendant's own "computers and portable electronic devices"), aff'd , 770 F. App'x 251 (6th Cir. 2019) ; United States v. Hendley , No. 1:14-CR-453, 2015 WL 7779215, at *4 (N.D.) (clarifying that the search warrant was "limited to [the defendant's] property").
As for United States v. Laurezo , while the court in that case also upheld a search of electronic devices belonging to third parties, the government had previously secured individual search warrants for each device after initially seizing them from the residence. No. CR 18-3413, 2019 WL 1952628, at *2, 4–6 (D.N.M. May 2, 2019), report and recommendation adopted , No. CR 18-3413, 2019 WL 2443100 (D.N.M. June 12, 2019). Riley specifically contemplates such a two-step approach, see 573 U.S. at 401, 134 S.Ct. 2473, and the magistrate judge offered it in this case, Magistrate Judge Order at 10. Thus, Laurezo cuts against the government's position.
That leaves Wyoming v. Houghton , 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). In Houghton , the Supreme Court upheld a warrantless search of purses found in a vehicle carrying two passengers, without regard to ownership, based on the driver's possession of contraband, relying on two considerations: (1) the possibility that the purses could hold the contraband which the officers had probable cause to believe was in the car; and (2) the "reduced expectation of privacy with regard to property that [passengers, no less than drivers] transport in cars." Id. at 301–03, 119 S.Ct. 1297. But here, neither consideration applies. First, there is no basis to suspect that evidence of Subject One's offenses may be found on a third party's cell phone. And second, Riley recognized that individuals have a greater expectation of privacy in their cell phones than in run-of-the-mill containers. Cf. Riley , 573 U.S. at 398–99, 134 S.Ct. 2473 (distinguishing the "reduced expectation of privacy" at issue in Houghton and the vehicle context from the heightened privacy interests that apply to cell phones).
One final topic warrants discussion. The government's search warrant application proposes to allow its agent to "review a cell telephone's telephone number or owner information (often available in Settings), home screen, photo gallery, stored text messages, contact list, and/or social media or email address applications" to help them "identify its owner or operator." 1/21/21 Search Warrant Application ¶ 48(d). But, as the magistrate judge pointed out, this approach controverts the logic of Riley , which placed all data stored on or accessible via a modern cell phone behind the protection of a warrant supported by probable cause. So, the government must be able to adequately link a given cell phone to Subject One or the suspected criminal activity before it can access any of the phone's data.
In sum, based on his well-supported probable cause determination to which this Court must give due deference, the magistrate judge properly limited the government to seizing and searching those cell phones within the residence that the executing officers reasonably believe to belong to or be regularly used by Subject One.
IV. Conclusion
For the foregoing reasons, the magistrate judge's order partly denying the government's search warrant application is affirmed. IT IS SO ORDERED.
The Court will enter this opinion under seal for now, "in light of the ongoing investigation and contemporaneous execution of the search warrant." See In re Search Warrant Application for [redacted text] , 279 F. Supp. 3d 800, 807 (N.D. Ill. 2017). At an appropriate time in the future, "when there is no risk either to the investigation or to publicly (and unfairly) inferring the identity" of Subject One, the Court will unseal a redacted version of this opinion and the briefs, after conferring with the government and the amicus. See id.