Conventional wisdom tells us federal courts will protect our rights better than state courts. This is why virtually everything is turned into a federal case. But two recent cases relating to cell phone search warrants reveal this isn’t always the case.

In Riley v. California (2014), the U.S. Supreme Court held that police generally need to obtain a search warrant before accessing information on a cell phone. But the opinion did not place any limits on or set any standards constraining the scope of cell phone warrants. In effect, a  warrant can give police access to every bit of information and data in a phone.

Federal Court Fail

In a recent case, United States v. Morton, attempting to further constrain cell phone warrants, a federal court instead upheld over-broad searches.

When a Texas state trooper pulled over Brian Morton, he found drugs in the car. While the evidence only supported drug possession charges, police alleged drug trafficking when they requested and received a warrant to search three cell phones found in the car. The warrant application requested nearly unlimited access to the phones. In effect, it was a “general warrant” with virtually no constraints.

While searching the phone, investigators went through photos and discovered what appeared to be child pornography. This led to a second warrant, additional searches of the phones, and ultimately child porn charges.

Morton challenged the initial warrant, arguing that the wasn’t sufficient probable cause. He asserted that there was no reason to believe officers needed to search a cell phone to find evidence of simple drug possession.

The initial Fifth Circuit Court of Appeals panel partially agreed with Morton, finding that “searching the digital images on Morton’s phone—allegedly for drug-trafficking-related evidence—was unsupported by probable cause.” But the full Fifth Circuit Court reversed the panel’s ruling, saying officers acted in “good faith” when they looked through the photos based on the warrant. Under the “good-faith” legal exception, “evidence should not be suppressed when law enforcement obtained it in good-faith reliance on a warrant.”

The State Court Did Better

A similar case in Maryland state court, Richardson v. State, had a completely different outcome that increased privacy protections and limited the action of government agents.

After Anthony Richardson got into a fight at school, a school resource officer grabbed his backpack. A search of the contents turned up three cell phones and a handgun. Law enforcement got a broad warrant to search the phones for “[a]ll information, text messages, emails, phone calls (incoming and outgoing), pictures, videos, cellular site locations for phone calls, data and/or applications, geo-tagging metadata, contacts emails, voicemails, oral and/or written communication and any other data stored or maintained inside of [the phone].”

During the search, investigators found text messages relating to a planned robbery.

In Richardson v. StateRichardson argued that the warrant was in effect an unconstitutional “general warrant” because it authorized a search for “any and all” data and information.

The Maryland Court of Appeals agreed, finding the warrant “overly broad” and therefore a violation of the Fourth Amendment.* The Maryland high court recognized that “the privacy concerns implicated by cell phone storage capacity and the pervasiveness of cell phones in daily life do not fade away when police obtain warrants to search cell phones and found that because cell phones contain vast amounts of information officers can rarely, if ever, demonstrate probable cause to search the entirety of a phone’s contents.

The court held that judges issuing search warrants for cell phones “must think about how to effectively limit the discretion of the searching officers so as not to intrude on the phone owner’s privacy interests any more than reasonably necessary.”


The lesson here is we shouldn’t automatically assume federal courts will do a better job of protecting individual rights than state courts.

And there is an even greater danger in turning to federal courts. A bad opinion issued by a federal court can impact every person in every state unless states act to counteract that bad precedent. (And they usually don’t.) But a bad opinion in a state court only impacts people in a single state. Of course, that’s not a good thing. But the damage to liberty remains contained.

As with all things relating to government, we should seek to decentralize the judicial system to the greatest extent possible.


* Instead of basing its opinion on the Fourth Amendment, the Maryland court should have based it on Article 26 of the Maryland Declaration of Rights.

“That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.”

There was no federal issue in this case and no reason to invoke the U.S. Constitution. The only reason the Fourth Amendment was mentioned was due to the dubious and dangerous incorporation doctrine.

Mike Maharrey

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