Court rules police with a search warrant can look at photos in a suspect's smartphone photo folder

The Supreme Judicial Court ruled today that prosecutors can use photos found on the phone of Hyde Park man against him when he comes to trial on gun charges related to a 2011 gun battle outside his apartment.

That the decision came in a 4-3 vote, however, highlights the court's struggles to adapt laws and decisions that date to the age of quill pens to the current digital world.

In its ruling, the state's highest court said that even though a search warrant for Denis Dorela's iPhone only seemed to let police search the phone's text messages and their attachments, photos in a separate photo folder were fair game as well, in part due to the technical issue that photos attached to text messages can be stored in the photo folder, and sometimes stay there long after the messages in question have been deleted.

Also, the justices ruled, there was no practical way for investigators to know what the photos showed until they called them up.

Police say the photos show Dorelas holding a gun and wearing the same green jacket witnesses spotted him in when he allegedly rushed out of his Pierce Street apartment on July 3, 2011 and began exchanging rounds with another man - and getting shot in the leg for his trouble.

Still, the majority on the court continued, investigators have to be careful what they search; the state constitution's equivalent of the Fourth Amendment would not let them go on a fishing expedition through the phone and that requests for search warrants must detail the "particularlized" data investigators seek - while the majority found this criterion met in this case, they criticized the warrant request as poorly written.

The justices explained that:

In the instant case, the police presented evidence in the warrant affidavit that included the statements of witnesses to the effect that the defendant had been receiving threatening communications on his iPhone with respect to money he owed to "people," and indeed had been using his iPhone while arguing with an individual immediately prior to the shooting. This was admittedly sufficient to establish probable cause to believe that the defendant's iPhone likely contained evidence of multiple contentious communications between himself and other persons in the days leading up to the shooting, that is, evidence of communications both received as well as initiated and sent by the defendant that would link him and others to that shooting. The warrant, in turn, included authorization to search for such evidence not only in the iPhone's call history and text message files, but also in its photograph files. ...

Communications can come in many forms including photographic, which the defendant freely admits. So long as such evidence may reasonably be found in the file containing the defendant's photographs, that file may be searched. ... We agree with the motion judge that the evidence sought, for which there was probable cause, might reasonably have been found in the photograph file. Therefore, a search for such evidence in that file was neither outside the scope of the warrant nor unreasonable.

The dissenting justices, however, wrote the rest of the court went too far and that the decision could lead to fishing expeditions on smart phones despite recent Supreme Court and Supreme Judicial Court rulings that limit what investigators can look for. In this case, they wrote, there's no evidence the photos of Dorelas were connected to the telephone threats allegedly made against or by him.

What the affidavit did not provide was reason to believe that the iPhone's entire set of photograph files, as opposed to only those photograph files attached to calls or text messages, would present evidence related to the shooting. In the abstract, I do not disagree with the court's statement that "[c]ommunications can come in many forms including photographic." Nor, apparently, does the defendant. A photograph depicting a severed horse's head, for instance, might well be used to communicate a threat (in the mode of "The Godfather" novel and motion picture). But the hypothetical viability of communication by photographic suggestion, even had it been mentioned in the affidavit, would not have supported a reasonable, commonsensical inference that a search of the defendant's entire set of photograph files was needed to produce the subset of photographs that might at some point have been communicated. ...

We must not be taken in by the shape and size of a device that permits access to massive stores of information of different kinds. Where possible -- recognizing that it not always is -- it may be best to treat such a device more like a city than like a packing crate. Here, there was no impediment to limiting the search to certain types and categories of files stored in specific sections of the iPhone's data storage. Because there was no substantial basis for believing that the entire set of photograph files on the defendant's iPhone contained evidence related to the shooting, that portion of the iPhone should not have been included in the "place" to be searched.

Allowing the police to search a broad variety of categories of files, many of which were at most tangentially related to the communications described in the affidavit, was an "end run" around the particularity requirement. Particularity should mean more than just a general directive to the police to look until they find something.