Suspects Use Cell Phones, but So Do We: State v. Goynes and the Constitutional Dangers of Boilerplate Search Warrants

Publication year2021

99 Nebraska L. Rev. 477. Suspects Use Cell Phones, but So Do We: State v. Goynes and the Constitutional Dangers of Boilerplate Search Warrants

Suspects Use Cell Phones, but So Do We: State v. Goynes and the Constitutional Dangers of Boilerplate Search Warrants

Note [*]


I. Introduction .......................................... 478

II. Background ........................................... 479
A. Cell Phone Use & Consumers' Expectations of Privacy ........................................... 479
B. Fourth Amendment Overview & Evolution of Search Warrant Requirements in Response to Technology . 482
C. Nebraska's Current Approach to Cell Phone Search Warrants: State v. Goynes ......................... 492

III. Analysis .............................................. 497
A. Shortcomings of the Goynes Decision ............... 497
1. Essential Eradication of Probable Cause Requirement .................................. 497
2. Substituting Particularity for General Searches of Cell Phones ................................. 502
B. Alternative Approach to Cell Phone Search Warrants ......................................... 504
1. Probable Cause: Case-Specific Nexus Between Crime & Cell Phone ........................... 504
2. Particularity: Specifying the "Apps" to Be Searched and Content to Be Seized ............ 506

IV. Conclusion ............................................ 508



In Riley v. California, the United States Supreme Court held that a warrant is generally required for law enforcement to search a cell phone seized incident to a suspect's arrest. [1] Although this mandate seems clear, [2] the Court did not outline what law enforcement must include in a cell phone search warrant to comport with the probable cause and particularity requirements of the Fourth Amendment. [3] As a result, state courts are left to determine when cell phone search warrants satisfy the Fourth Amendment. [4] In applying Riley and analyzing the validity of cell phone search warrants, the Nebraska Supreme Court has tried to balance law enforcement's need for evidence against citizens' privacy interests in an increasingly digital age. [5] Unfortunately, in its most recent case on this issue, State v. Goynes, the court failed to properly balance these conflicting interests. [6]

In Goynes, a criminal defendant challenged the district court's refusal to suppress evidence that police recovered from a search of his cell phone, arguing the authorizing search warrant violated the Fourth Amendment. [7] Despite the shortcomings of the warrant, the Nebraska Supreme Court affirmed the district court's admission of the cell phone evidence, holding the warrant was supported by probable cause and sufficiently particular. [8]

This Note aims to articulate the shortcomings of the court's decision in Goynes and the impact it has on Fourth Amendment protections in Nebraska. Part II of this Note will discuss the increased presence of cell phones in American society and rising privacy con-


cerns as cell phones become more advanced. [9] Additionally, Part II will discuss how the law governing search warrants has developed over time and the ongoing difficulty courts have had in applying traditional Fourth Amendment principles to advancing technology. [10] Finally, Part II will discuss State v. Goynes, the Nebraska Supreme Court's most recent failure regarding cell phone search warrants. [11] Part III will discuss how the decision in Goynes established a dangerous precedent for lower courts to authorize broad, boilerplate cell phone search warrants that will expose Nebraska citizens to unreasonable searches in direct violation of the Fourth Amendment. [12] Part III will also offer an alternative approach to evaluating cell phone search warrants. [13]


A. Cell Phone Use & Consumers' Expectations of Privacy

Cell phones have become a staple of the American lifestyle. Approximately 96% of Americans own a cell phone, as compared to just 84% of Americans in 2008. [14] The overwhelming majority of these individuals own smartphones. [15] As technology advances, the frequency at which individuals use their cell phones and the amount of sensitive information they store and access on their cell phones is also exponentially increasing. [16]


In Riley, the Court explained that a standard sixteen gigabyte device can hold millions of text messages and documents. [17] In the six years since Riley was decided, cell phone storage capabilities have drastically increased-with the top-selling cell phone of 2018 having up to 256 gigabytes of storage-allowing consumers to store even more private data on their devices. [18] The amount of private information accessible from a smartphone is even greater as more individuals use "the Cloud," [19] which allows the user-and police-to access data that is not stored directly on the cell phone from the device. [20] In addition to their massive storage capacities, cell phones have become so intertwined with human existence that some philosophers and cognitive researchers argue smartphones are actually an extension of an individual's mind worthy of protection from intrusion. [21] One researcher concluded that "unlocking our devices is not simply like unlocking our house" but "is more like opening up our minds," and therefore, forcing individuals to do so without proper safeguards is a breach of mental autonomy. [22]


In light of these technological developments, debates about cell phones and privacy rights have catapulted into the center of the national stage. Most famously, a court case about how much power law enforcement should have to force providers and manufacturers like Apple to unlock encrypted cell phones [23] exploded into a controversy that divided the nation. [24] This debate illustrated the rise of an underlying national sentiment: cell phone data is so private that the government should not be able to access or monitor it, even for anti-terrorism efforts. [25] Cell phone privacy concerns have also resulted in citizens seeking technological protections to prevent law enforcement from searching their phones, and some major cell phone manufacturers have answered this call. [26] It is with this information about cell phone storage capabilities, along with the understanding of just how important citizens believe cell phone privacy to be, that the legal community must approach the discussion of cell phone search warrants.


B. Fourth Amendment Overview & Evolution of Search Warrant Requirements in Response to Technology

Both the Fourth Amendment of the United States Constitution and the first Article of the Nebraska Constitution provide that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [27]

The Founding Fathers' motivation for including this language in the Constitution is clear-citizens need to be protected from "general warrants" which would allow the government to engage in exploratory rummaging of an individual's possessions. [28] Modern courts emphasize this policy rationale when analyzing Fourth Amendment issues. [29] To protect against exploratory rummaging, searches conducted by police without a warrant "are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." [30]

The second clause of the Fourth Amendment provides that warrants must meet two requirements: (1) warrants must be supported by probable cause, and (2) warrants must be sufficiently particular in describing "the place to be searched, and the persons or things to be seized." [31] In applying these Fourth Amendment requirements, the Nebraska Supreme Court has held: "Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found." [32] Affidavits alleging facts


from police investigations are used to establish probable cause. [33] When evaluating if an affidavit provides sufficient probable cause to support a warrant, "[t]he question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause." [34]

As for particularity, the U.S. Supreme Court [35] and the Nebraska Supreme Court have held that "[a] warrant satisfies the particularity requirement if it leaves nothing about its scope to the discretion of the officer serving it" in order to prevent "overseizure and oversearching." [36] Courts, however, have not taken literally the requirement that a warrant leave "nothing" to the officer's discretion. Instead, this language is widely interpreted to mean that "a warrant must be sufficiently particular to prevent the...

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