Baltimore police have stopped extracting data from cellphones, a powerful investigative tool, as the department assesses how to ensure its search warrants meet the requirements of a consecutive opinion issued this week by the most high court of Maryland.
Monday’s Court of Appeals ruling forces Maryland police to be more specific when seeking warrants to search people’s cellphones and recommends law enforcement adopt protocols for extracting data from people’s cellphones. devices within narrower parameters.
Written by Judge Jonathan Biran, of the 5th Judicial Circuit of Appeals, the opinion builds on a principle that has permeated federal courts: an acknowledgment that smartphones store some of the world’s most sensitive information. society – from a person’s bank statements to their personal photographs – and that the government should not have unlimited access to such private content.
The precedent-setting opinion makes it clear that the Fourth Amendment’s “specificity requirement” — mandated warrants identify specific places, objects, or people to be searched or seized — applies to cell phones. While police may have already asked a judge to access “all” phone data, the ruling says they must limit their investigation to information relevant to an investigation.
“This is a very important decision to limit the extent to which the police are allowed to see the most private parts of your life,” said Katie Kronick, assistant professor of law at the University of Ottawa Law School. University of Baltimore. “It’s a huge development.”
Kronick said the practice of police writing “blanket warrants to enter cell phones” dates back to the landmark Supreme Court decision in Riley v. California, which in 2014 determined that law enforcement needed a court order to search and seize the contents of a cellphone.
A smartphone keeps the user’s call logs, text messages, photos, location data, and internet search history, among other types of data. Hidden in the data treasures, there might be a clue that would solve a case for a detective. Cell phone search warrants have become commonplace in homicide, shooting, robbery and narcotics investigations.
“The cell phone has now become the No. 1 target of law enforcement,” said Dr. William Folson, a digital forensics expert who has testified as an expert witness on cellular devices in federal, state and federal courts. and military.
To gain access to a phone, an investigator must convince a judge that there is probable cause that the contents of a cell phone would provide evidence of a crime.
Equipped with the court order, most agencies use the Cellebrite UFED device to break into a locked phone and download its contents, Folson said. The Cellebrite program then exports a report, which can contain thousands of pages, listing the contents of the phone.
Folson, who worked in law enforcement for a decade, said some agencies have the technology to narrow extraction parameters based on data type or timeline, but it hasn’t been. practice – and for a legitimate reason: it makes the job more difficult.
“When you have a cell phone and you suspect it’s being used as an element of a crime, you don’t know where those elements are going to be stored,” Folson said. “Let’s say, for example, that I send a threatening letter to someone. I can type it on my phone, I can email it, or I can type it on my home computer, put it on my desk and take a picture.
“The evidence could be an image or the evidence could be a text file or the evidence could be so many things stored in so many places,” he added.
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Baltimore police have an average of two phone extractions per day and are “committed to following the new case law,” said department spokeswoman Lindsey Eldridge.
“Based on the opinion, we have stopped all extractions and are not accepting any new requests,” Eldridge said in an email to the Baltimore Sun. The department is consulting with its legal department, the city attorney’s office, and the attorney general’s office “to ensure that the current search warrant template meets all requirements.”
Spokespersons for the State’s Attorney’s Office, Maryland State Police and Baltimore County Police did not respond to questions Thursday.
Although the notice is unambiguous as to its intent, the court opted for general guidelines for law enforcement and trial judges rather than a step-by-step process on how agencies should comply. He provided examples of protocols police departments could implement to comply with the new law, ruled out exceptions, and left judges with discretion to enforce it warrant by warrant.
The opinion says “you can’t just make the discharge too broad,” said Natalie Finegar, a veteran defense attorney in Baltimore. “But that doesn’t tell them how they can get away with it.”
She summarized how this could be applied.
“Because they can have probable cause for an activity and time period, that doesn’t mean they should be able to search your entire electronic history stored in your phone,” Finegar said. “If I’m charged with theft yesterday, what I did six months ago is irrelevant unless I’ve been planning it for six months.”