Last week Judge Roman Nelson issued a decision, United States v. Chukwuemeka Okparaeka, No. 17-CR-225 (NSR), 2018 U.S. Dist. LEXIS 112687 (S.D.N.Y. July 5, 2018), denying the Defendant's motion to suppress. The Defendant was charged with the distribution of narcotics. Police obtained a warrant to search his cell phone allowing for the search and seizure of ESI concerning the owner's identity; evidence concerning the identity and location of his co-conspirators; records (including calendar entries) regarding the alleged offenses; and photos and video regarding the offenses. The decision focused on the fact that the police searched the cellphone's internet browsing history which showed that he made incriminating posts on Reddit.
Judge Roman held that the magistrate judge correctly determined that the totality of circumstances indicated there was probable cause to search the cell phone. Packages containing controlled substances were seized in a random search at an airport that an investigation showed were to be picked up by the Defendant at a post office. The Defendant used his cell phone to call the post office in an effort to pick up the package, and also tracked the package using an app called Privnote.
The Defendant argued that the police exceeded the scope of the warrant by searching his internet browsing history. The Court disagreed, finding that information about the owners or users of the cell phone could be found in the internet history, such as social media posts, as well as information about the alleged offenses, such visits to the site of a bank. ". . . [R]eview of the cellphone's internet browsing history and any already opened webpages was squarely within the scope of the warrant. Internet browsing history and any opened webpages are electronically stored information that is readily available within the subject device and could reveal evidence concerning the identity of the owners or users of the subject device or any records related to the subject offense." Id. at 35. The search was focused on particularized information, and did not "wander aimlessly" in searching for data on the device.
Judge Roman also held that the good faith exception to the exclusionary rule applied because the average officer would not have known that the searches exceeded the scope of the warrant. "It is reasonable for a police officer to believe that evidence concerning the identity of the owners or users of the subject device as well as any records concerning the subject offense would be present in the internet browsing history." Id. at *36.
Judge Roman distinguished between web pages already opened on the cell phone, and information accessed through the cell phone. The motions presented to the court did not make clear if the search involved accessing Reddit posts not already opened on the device. The Court ordered additional briefing on one question: "whether accessing unopened Reddit posts through Defendant's phone constituted a search of ESI within the scope of the search warrant." Id. at *38.