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Delaware Supreme Court: Warrant That Authorized Search of ‘Any and All’ Data of Named Files on Cellphone Is Invalid General Warrant That Also Failed to Include Temporal Limitation

by Douglas Ankney

 

The Supreme Court of Delaware ruled that a warrant authorizing a search and seizure of “any and all” data of named files of a cellphone was an invalid “general warrant,” and the warrant was also invalid because it did not include a temporal limitation.

Andrea Casillas-Ceja’s four-year-old daughter J.S. told her that Jose Terreros had licked her vagina. Casillas made Terreros leave the home and called police. Days later, Casillas observed on the internet search history of Terreros’s cellphone several web searches related to J.S.’s accusations. Casillas reported her discovery to the police. Officer Jay Davidson’s application for a warrant included the following pertinent portion from his affidavit:

“Your affiant was advised by [Casillas] that she responded to [her front yard] where she located [Terreros cell phone]. [Casillas] advised that she proceeded to check the search history and found pornography, a search of how to detect if a little girl has been raped, how long saliva stays on the body, and a search of how long fingerprints stay on clothes/sheets/blankets.”

The application and affidavit sought authorization to search “[a]ny and all messages, any and all messaging apps, all search history, all photographs, videos, GPS coordinates, incoming and outgoing calls from November 18, 2019, to November 23, 2019.” On November 23, 2019, the Justice of the Peace Court (“JP Court”) approved a warrant to search as described in the above application but failed to include the temporal limitation dates “from November 18, 2019, to November 23, 2019.”

In December 2019, Detective Steven Burse of the New Castle County Police Department used Cellebrite software to extract and download 29 gigabytes of videos, pictures, audio files, search history, and GPS coordinates (including more than 3,000 videos and 60,000 pictures).

In March 2021, Terreros moved pretrial to suppress the fruits of the search, arguing that “the warrant lacked sufficient particularity as to the types of data it authorized police to search and that it lacked any temporal limitation.” The superior court held a hearing on the motion and ultimately denied the motion, finding that “the warrant was not a general warrant because” based on representations from the State at the hearing, the warrant “limited the search to specific categories, [and] did not allow a search of contacts, e-mails, Facebook, Instagram, or any financial information, and Cellebrite limited the extraction temporally.”

Evidence of Terreros’s search history was admitted at trial to corroborate Casillas’ testimony of what she had observed on the cellphone. Terreros was convicted by a jury of sexually abusing J.S., and he timely appealed, arguing, inter alia, the superior court erred in denying the motion and in failing to suppress the evidence.

The Delaware Supreme Court observed that both the Fourth Amendment to the U.S. Constitution and Article I, Section 6 of the Delaware Constitution require warrants before the government may search “persons, houses, papers, and possessions,” and those warrants must “be supported by probable cause and describe the places and things to be searched with particularity.” Fink v. State, 817 A.2d 781 (Del. 2003).

“The probable cause requirement mandates that the ‘affidavit in support of the search warrant must, within the four corners of the affidavit, set forth facts adequate for a judicial officer to form a reasonable belief that an offense has been committed and the property to be seized will be found in a particular place.’” LeGrande v. State, 947 A.2d 1103 (Del. 2008). “In its most basic form, an affidavit must point not only to the evidence to be seized and the place to be searched, but also the reason why the affiant believes such evidence will be found in the place to be searched.” 11 Del. C. § 2306.

The warrant “must satisfy the particularity requirement, which is fundamental and performs its own work in protecting against unreasonable searches and seizures.” Berger v. New York, 388 U.S. 41 (1967). “To pass constitutional muster, the warrant itself must describe the things to be seized and the places to be searched with particularity such that ‘nothing is left to the discretion of the officer executing the warrant.’” Marron v. United States 275 U.S. 192 (1927). “A warrant that fails to conform with the particularity requirement is unconstitutional.” Stanford v. Texas, 379 U.S. 476 (1965).

Warrants that fail the particularity requirement are either “general warrants” or “overbroad warrants.” Wheeler v. State, 135 A.3d 282 (Del. 2016). General warrants permit law enforcement to conduct indiscriminate searches likened to “exploratory rummaging.” Andresen v. Maryland, 427 U.S. 463 (1976). Overbroad warrants “allow police to search in specified places or for specified items more broadly than the articulated probable cause.” United States v. Yusuf, 461 F.3d 374 (3d Cir. 2006). The distinction matters because the remedy for general warrants is the complete suppression of the fruits of the search; whereas, an overbroad warrant “can be redacted as to the portions of the search for which no probable cause exists.” United States v. Christine, 687 F.2d 749 (3d Cir. 1982). These principles apply when the “place” to be searched and/or the “evidence to be seized” is digital in nature. Riley v. California, 573 U.S. 373 (2014).

In Wheeler, the warrant allowed for a search of “any and all data” stored on “any personal computer.” The Wheeler Court ruled that the “warrant failed the particularity requirement because it did not contain sufficient probable cause to support the authorized searches of all digital content. In other words, the warrant lacked a sufficient nexus between the types of digital media to be searched and the investigation’s current evidence of criminal activity.”

In the present case, the Court explained that the detective’s evidence and affidavit provided probable cause for the JP Court to authorize only a search of Terreros’ search history over the course of a few days. There was not a sufficient nexus between the types of media the warrant authorized to be searched and Davidson’s proffered “search history” evidence in his affidavit.

Furthermore, the Court determined that the warrant issued was a “general warrant” because it authorized a search of virtually the entire contents of the phone. The superior court erred in finding that because the warrant identified specific categories of data, it did not authorize a search of “any and all” data as prohibited by Wheeler, according to the Court. Thus, the Court agreed with Terreros that naming nearly every specific category of data on the phone and then permitting a search of “any and all data” of those specific categories was the same as searching “any and all data.”

Additionally, the Court was troubled by the superior court’s reliance on misrepresentations made by the State at the suppression hearing. First, “the State consistently represented to the [superior] court that Cellebrite, a company that produces software to perform cellphone extractions, was a neutral third-party that could limit the search’s temporal scope to the dates contained in the application.” That was “manifestly incorrect; the extraction and search were conducted by law enforcement using Cellebrite software.” The record did “not show that law enforcement applied any temporal limitation during the search.”

Second, the superior court’s finding that Terreros’s email, social media, Instagram, and Facebook accounts were not searched was based on the State’s representations at the hearing. But that finding could not be sustained because the issue was what the warrant’s “four corners” authorized, i.e., the warrant’s scope and not the search’s results were what must be evaluated under the Fourth Amendment. And the warrant clearly authorized a search of those categories of data. (Also, contrary to the State’s representations, the extraction report included data from Facebook, Instagram, and WhatsApp.)

The Court concluded that the warrant was a general warrant, and it was also invalid because it did not include any temporal limitation. Thus, the Court held that the superior court erred in denying the suppression motion.

Accordingly, the Court reversed Terreros’ convictions and remanded to the superior court for further proceedings consistent with its opinion. See: Terreros v. State, 2024 Del. LEXIS 20 (2024).

Editor’s note: Anyone interested in the particularity requirement and general warrants is encouraged to read the Court’s full opinion, which contains a detailed review of both Delaware and federal law on the topics.

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Related legal case

Terreros v. State

 

 

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