Supreme Court lets stand Maryland convictions based on cellphone search

Steve Lash//January 8, 2018

Supreme Court lets stand Maryland convictions based on cellphone search

By Steve Lash

//January 8, 2018

FILE - In this June 26, 2017, file photo, the Supreme Court is seen in Washington. The Supreme Court is taking up a case about political maps in Wisconsin that could affect elections across the country. The justices are hearing argument on Oct. 3 in a dispute between Democratic voters and Wisconsin Republicans who drew maps that have entrenched their control of the legislature in a state that is otherwise closely divided between the parties. (AP Photo/J. Scott Applewhite, File)
In this June 26, 2017, file photo, the Supreme Court is seen in Washington.  (AP Photo/J. Scott Applewhite, File)

The Supreme Court on Monday let stand without comment a Maryland man’s robbery, assault and theft convictions based on evidence from his cellphone, which police had seized with a controversial search warrant.

In his unsuccessful request for Supreme Court review, Timothy Stevenson argued through counsel that an officer’s mere contention that criminals use cellphones to memorialize their crimes cannot be constitutionally sufficient to secure a warrant to search it. Rather, police must allege a “case-specific nexus between the phone and the crime” to secure a constitutionally valid search warrant, Maryland Public Defender Paul B. DeWolfe had stated in papers filed with the justices in November.

The high court’s refusal to hear the case is simply that and not a decision on the merits of DeWolfe’s argument. The case was docketed at the Supreme Court as Timothy Stevenson v. State of Maryland, No. 17-796.

DeWolfe’s request followed the justices’ 2014 decision in Riley v. California that police must, in the absence of an emergency, secure a warrant to search a cellphone seized from a suspect incident to an arrest. The justices, however, did not say what links between the suspected crime and the cellphone’s contents police must assert to secure a warrant.

In Stevenson’s case, police secured a search warrant by saying their training and experience indicate evidence related to violent crime is often found on cellphones because criminals often photograph their misdeeds.

Indeed, the damning evidence against Stevenson at trial was a cellphone photograph of his robbery victim after the attack. Stevenson was convicted of first- and second-degree assault, robbery, reckless endangerment and theft of property under $1,000, convictions that Maryland’s top court, the Court of Appeals, affirmed on appeal in August.

In the papers filed with the justices, DeWolfe said upholding a search warrant based on such a generalized statement from police would convert the Fourth Amendment’s prohibition on unreasonable searches “from a meaningful safeguard into a meaningless formality and effectively (leave) the place in which more than 90 percent of American adults store a digital record of nearly every aspect of their lives without constitutional protection.”

The Supreme Court should hear Stevenson’s appeal and give the search-warrant requirement “force by ensuring that it is not used to justify the type of general warrant to rummage through a cache of every suspect’s most private thoughts, communications, activities, associations, interests, and relationships that the Fourth Amendment was designed to protect against,” DeWolfe stated in the brief co-signed by Assistant Public Defenders Kiran Iyer and Katherine P. Rasin, the attorney of record before the justices.

“By interpreting the Fourth Amendment’s probable cause requirement to demand a case-specific nexus between the alleged crime and the phone, this (Supreme) Court would ensure that cellphone data receives protection commensurate with the privacy interests at stake,” DeWolfe added.

Maryland Attorney General Brian E. Frosh waived his right to respond to DeWolfe’s brief unless a response was requested by the justices. That request was not made.

Not unreasonable inference

Maryland’s top court, in affirming Stevenson’s convictions last August, said deference is owed to the training and expertise of officers seeking search warrants and the judges who issue them.

Judges could validly infer “that persons use cellphones to communicate and that evidence of the crimes being investigated, and any related crimes, would be found on (the suspect’s) cellphone,” Court of Appeals Chief Judge Barbera wrote for the 5-2 majority. “This was not an unreasonable inference to draw, considering not only the prevalence of cellphones but also the degree of detail of one’s daily life that is often contained in a cellphone.”

Barbera added, however, that “not every affidavit will (or should) result in issuance of a warrant” to search a cellphone.

“We can imagine situations in which the nature of the crime will not support a warrant to search the suspect’s cellphone; examples might include traffic offenses, public nuisance crimes, and the like,” Barbera wrote. “The judge will necessarily consider the nature of the crime being investigated, the facts provided in support of the connection between that crime and the cell phone to be searched, and, depending upon the (officer’s) demonstrated training and experience, the degree to which the deference owed to the (officer) adds to the ultimate decision. The decision of the warrant-issuing judge will ultimately rest on whether, in its totality, the affidavit sets forth a fair probability that the information will be found in the cellphone to be searched.”

Judge Sally D. Adkins, in disagreeing with the majority, said the search warrant was so broad and supported by mere generalities linking cellphone use to criminal activity as to violate the Stevenson’s constitutional rights. To be valid, a warrant must state more specifically the evidence expected to be found on the devices and not a temporal or general description, she added.

“I fear that the majority has paved the way for law enforcement to search a cellphone without a nexus between the criminal activity and the phone to be searched,” Adkins wrote in a minority opinion Judge Clayton Greene Jr. joined.

“We should not condone a warrant authorizing police to search the entirety of a cellphone absent any temporal limitation on the information to be searched,” Adkins added. “A warrant of such generality raises the same concerns our framers sought to address by crafting the Fourth Amendment.”

But Adkins and Greene said they would have upheld the search of the cellphone because the police relied on their good-faith belief that the warrant was constitutionally valid.


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