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To get any search warrant, the government needs an affidavit, signed under oath by an affiant (law enforcement officer), that lists facts and details for a judge or examining magistrate sufficient to establish probable cause that a crime has been committed before they even get a search warrant. This certainly applies to any search warrant for your electronic devices. In fact, there is a strong trend by courts to require search warrants to be very specific about the exact types of evidence the police expect to find on any electronic device.
For example, if the police are expecting to find messages with an underage minor on your Snapchat app, the warrant should specify this. If they find any other types of media on your device that are not directly linked to that search (say evidence of child pornography), that evidence can be suppressed unless a second/new search warrant is secured.
The reason for this heightened level of protection is somewhat obvious. Electronic devices, particularly cell phones, carry more personal and private data and information in one place then all other places combined a few decades ago, even a person’s home. A person’s digital devices contain your schedule, your contacts (and their phone numbers and email addresses), personal text messages, emails, GPS data, banking information, travel information, and personal photographs and video footage.
If you receive and send emails from your cell phone, those emails (along with text messages) can contain incredibly high levels of personal, private, or business-related information that most of us expect to keep private. For these reasons, the courts now give digital devices heightened legal protections against searches and seizures than any other property – even your home itself.
The police can seize any type of device that is believed to be connected to a crime, contains evidence of a crime, or was used to commit a crime. This includes cellphones, tablets, laptops, and desktop computers.
There is no hard deadline for how long the police can hold onto digital devices. If the police claim a device is or contains evidence of a crime, they could theoretically keep the device until the conclusion of a trial. Even then, they may claim there is an appeal period that must be passed before they give it back.
Sometimes prosecutors will work with a defense attorney on returning a device sooner if it’s needed to run a business, or if you cannot otherwise manage without the device. If prosecutors agree, law enforcement will mirror the device, creating an exact copy of its contents, and then return the device.
However, in cases where the device contains material that is unlawful to possess, such as child pornography, it will be very difficult, if not nearly impossible, to get the device returned.
You have a Fifth Amendment right to remain silent and not testify against yourself. For that reason, courts have made a very clear distinction between the police asking for something that is testimonial in nature versus the police asking or something that is not testimonial in nature.
So, how does this apply in cases of access to digital devices? In short, providing a password is considered testimonial and is protected. Biometric measures, however, (such as a face scan or fingerprint), are considered physical evidence and not testimonial. The police can therefore compel you to provide Face ID, but likely cannot require you to provide a password.
Legally, a person only has the right to object to and illegal search and seizure of something that a person has an expectation of privacy in. This legal concept is called standing. For example, if you were to come over to my house for a party and leave a bag of cocaine on my coffee table, and the police busted in and seized the cocaine, you would not have the right to object, as this did not happen in your private home, and the law would hold that you do not have standing challenge a search in my home, because you do not have an expectation of privacy in my home.
This is a factually based inquiry, that will depend significantly on the unique circumstances and nuances of a particular case. However, to oversimplify this answer, if multiple people have access to an electronic device (such as a laptop being used by yourself and two other housemates), that lessens any argument that you had a reasonable expectation of privacy in that device. It will therefore make it much more difficult to challenge a search or seizure of that laptop.
The first thing to do is to verify that there is nothing on the device (such as protected communications between you and your lawyer) that the police should not be looking at. If there are, your attorney must file a petition for a temporary restraining order (TRO) to prevent the police and the prosecution from accessing any information that should not be viewed by law enforcement. Any discussions of case facts, evidence, and legal strategy should absolutely remain confidential, and a TRO can protect that data from review by police and prosecutors.
Next, an experienced attorney can try to get the device back from you. If you’re not going to be charged with a crime or if the investigation is going to be lengthy, your lawyer may be able to work with the prosecutor and the police to get you the device back. This can help you recover a cellphone or laptop that you may need for work or other important purposes. The police will first make a copy of the files on your device, and then return the device to you through your attorney.
Finally, a good criminal defense lawyer can file a motion challenging any unreasonable or unlawful searches and seizures done in connection with your device. If your device was seized illegally, without a warrant or without any exception to the warrant requirement, it’s imperative to get this motion filed as soon as possible.
For more information on digital search warrants in Michigan, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 419-6133 today.
Attorney Mark Satawa is a skilled, tireless criminal defense attorney serving Michigan. Since 1992, he’s helped clients just like you stay protected from unlawful searches and seizures, and regain access to their digital devices whenever possible.
Have questions about digital search warrants, or in need of representation? Reach out to Satawa Law, PLLC for an initial consultation today.