Almost everybody owns a cell phone nowadays. But does that give the police license to obtain a warrant to search for and rummage through your home because they think you might own one and it might contain relevant evidence? In United States v. Griffith, a split panel of the D.C. Circuit undertook a thorough canvass of Fourth Amendment law and said they can’t do that, at least if the case doesn’t involve narcotics trafficking. The panel majority found error in the District Court’s denying a motion to suppress and vacated a jury conviction for unlawful possession of a firearm by a convicted felon. In so doing, the majority explored numerous legal doctrines which occur frequently in Fourth Amendment decisions.
The 28-page majority decision (Srinivasan & Pillard, JJ) noted that the underlying warrant authorized the officers to search for and seize all cell phones and other electronic devices in Griffith’s residence. The supporting affidavit offered almost no reason to suspect that Griffith owned a cell phone, or that any phone or other device containing incriminating information even would be found in his apartment. “In our view,” the majority stated, “the fact that most people now carry a cell phone was not enough to justify an intrusive search of a place lying at the center of the Fourth Amendment’s protection-a home-for any phone that Griffith might own.” (Slip Op. at 2).
Here, the police knew that Griffith was a member of a gang. Over a year-long investigation, much of which time Griffith was jailed on another matter, the officers uncovered tantalizing clues that he had driven a getaway vehicle used in a gang-related homicide. Upon Griffith’s release from jail, he moved into his girlfriend’s apartment. The police presented a 10-page affidavit to search her home. The affiant set forth a two-sentence conclusory assertion that gang members frequently stay in touch with one another via cell phones. The magistrate judge granted the application, which authorized the police to search any cell phones found in the apartment. (Slip Op. at 4-5).