Michigan v. Carson: “Unconstrained by Place” – Defending the Fourth Amendment

Suppose you have a next-door neighbor you trusted to help you sell some items online, in exchange for a share of the profits. You give him a key for easy access, and all seems to go well. Sometime later, you can’t remember the combination to your safe, so the locksmith opens it, and you discover your cash is gone. You suspect your neighbor and report him. The police raid his home and collect his cellphone along with other evidence. Law enforcement then obtains a warrant to search the phone, and finds it contains incriminating text messages. A conviction is obtained on that basis.
 
This scenario is based on Michigan v Carson. The warrant in question initially appeared to restrict the phone search to data pertaining to larceny and safe-breaking. So far, so good. But subsequent clauses in the warrant contained language that effectively negated any sensible limitation. The additional language was so expansive as to give authorities carte blanche to search every single piece of data the phone could offer up.
 
What began as a reasonable search within the Constitution’s guardrails for particularity morphed into a broad search amounting to a general warrant.
 
For this reason, PPSA filed an amicus brief before the Michigan Supreme Court showing that the contents of a phone are equivalent to physical documents and other items in a home. Both are personal property and therefore protected from exploratory searches by the Fourth Amendment, which requires that the “things to be seized” be described in very specific terms. This requirement is in fact the heart of the Fourth Amendment – the prohibition of unencumbered search and seizure regularly visited on colonial citizens by British authorities.
 
Searching all data on a modern smartphone is the 21st-century equivalent of ransacking homes and personal property without restriction, only worse.
 
The language in the Carson warrant is something that should give every American just as much pause. The police, it said, could “seize and search” all data on the phone and SIM card, and “all records or documents which were created, modified, or stored in electronic or magnetic form and any data, image, or information that is capable of being read or interpreted by a cellular phone or a computer.”
 
The warrant also contradicted itself by further authorizing the seizure of other physical items, rendering it unconstrained. In the colonial era, this amounted to a writ of assistance, another insidious form of search and seizure that, along with general warrants, were top of mind when the Fourth Amendment was crafted.
 
Whether electronic information or physical belongings, personal “effects” are subject to the same privacy principles. One could painstakingly reconstruct a target’s entire private life using the contents of their phone. It’s arguably a far more intrusive violation than rummaging through the documents in a dwelling.
 
Just think about the contents of your own smartphone for a moment and how you would feel if it was all exposed. It is for this reason that the U.S. Supreme Court held that cellphones contain “the privacies of life.”
 
When it comes to any warrant, its degree of particularity can vary greatly depending on the specifics of the case. But the intent of the Fourth Amendment is that every warrant must be limited in some sensible way.
 
The warrant being challenged in Michigan v Carson contained no limits. Its scope was unbounded and that is why we demonstrated to the Michigan Supreme Court that this search was unconstitutional.

DONATE & HELP US PROTECT YOUR PRIVACY RIGHTS