457 P.3d 1150
Wash. Ct. App.2020Background
- In July 2013 Pasco police investigated telephonic bomb threats to Columbia Basin College and traced a phone number to Steven Brown in Kennewick.
- A July 24, 2013 Franklin County warrant authorized search of Brown’s residence and Jeep and authorized seizure of listed items, including Brown’s cell phone; the warrant did not expressly authorize searching the phone’s contents and no subsequent warrant was obtained.
- Law enforcement later forensically extracted Brown’s phone and recovered texts from a number associated with Zachary Fairley showing communications with Brown’s daughter; Fairley was charged with misdemeanors based on those texts.
- Fairley moved to suppress; the district court denied suppression (finding lack of standing and that the warrant’s authorization to “seize” permitted a search); the superior court found Fairley had standing but upheld the search as within the warrant’s purpose.
- This Court granted discretionary review limited to whether the December 31, 2013 extraction of Fairley’s texts using special tools was outside the scope of the July 24, 2013 warrant; the Court reversed, holding the warrant did not authorize a contents search of the phone and remanded for further proceedings on standing/privacy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the July 24, 2013 warrant authorized searching the contents of Brown’s cell phone | Fairley: the extraction/search exceeded the warrant because it only authorized seizure, not a contents search | State: seizure of the phone implied authority to search the device for evidence of the crime | Court: Warrant did not authorize a contents search; seizure alone does not permit searching a phone’s data without particularized authorization |
| Whether Fairley had standing / a reasonable expectation of privacy to challenge the search | Fairley: he had a protected privacy interest in messages he sent/received and can challenge their seizure | State: Fairley lacked standing because the phone/property belonged to Brown and Fairley had no possessory or proprietary interest | Court: The majority did not decide standing on review; remanded to superior court to address standing and expectation of privacy consistent with this opinion |
| Whether Riley and the Fourth Amendment’s particularity requirement demand cell-phone-specific limitations or a second warrant | Fairley: cell phones store vast private data; warrants must specify data types/timeframes/protocols to avoid general searches | State: a common-sense reading of a warrant authorizing seizure for a particular crime (bomb threats) inherently limited the scope and did not require more specific language or a second warrant | Court: Riley requires heightened particularity for cell-phone searches; warrants must identify the types of data sought or limit the search by scope/timeframe/protocol; judicial officer—not executing officers—must set bounds |
| Applicability of plain view / good-faith exceptions to validate the search | Fairley: suppression is required because the search exceeded the warrant | State: doctrines like plain view or good faith could validate admission of seized data | Court: Majority noted plain view requires a lawful intrusion and Washington does not adopt the federal good-faith exclusionary-rule exception; those doctrines did not authorize the warrantless contents search here |
Key Cases Cited
- Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967) (historical rationale against general searches and support for particularity)
- Marron v. United States, 275 U.S. 192 (1927) (particularity requirement prevents seizure of one thing under a warrant describing another)
- Riley v. California, 573 U.S. 373 (2014) (searches of cell phones generally require warrants because of extensive privacy interests)
- State v. Perrone, 119 Wn.2d 538 (1992) (Washington treatment of particularity and protection against general warrants)
- State v. Figeroa Martines, 184 Wn.2d 83 (2015) (warrant to seize blood for DUI testing necessarily authorized toxicology testing)
- State v. Hinton, 179 Wn.2d 862 (2014) (third-party sender may have standing to challenge unauthorized search of recipient’s text messages)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (courts must guard against technological erosion of privacy protections)
- United States v. Russian, 848 F.3d 1239 (10th Cir. 2017) (seizure of a phone does not itself authorize a search of its contents)