Richardson v. State ( 2022 )

Anthony J. Richardson v. State of Maryland, No. 46, September Term, 2021. Opinion by
Biran, J.
CONSTITUTIONAL LAW – FOURTH AMENDMENT – ABANDONMENT – After
a school resource officer broke up a fight in which Petitioner was involved, Petitioner’s
backpack dropped from his body to the ground. Petitioner reached for the backpack, but
the officer picked up the backpack before Petitioner could do so. Without a further word,
Petitioner fled the scene. The Court of Appeals held that, in these circumstances, Petitioner
relinquished his reasonable expectation of privacy in his backpack and therefore abandoned
it for purposes of the Fourth Amendment. Thus, the officer was permitted to search the
backpack without a warrant.
CONSTITUTIONAL LAW – FOURTH AMENDMENT – PARTICULARITY –
CELL PHONE SEARCH WARRANT – When the officer searched Petitioner’s
backpack, he discovered, among other things, a firearm and three cell phones. Police
eventually obtained a warrant to search one of those cell phones. The Fourth Amendment
mandates that a search warrant must “particularly describ[e] the place to be searched, and
the persons or things to be seized.” Here, even considering the incorporated supporting
affidavit, the warrant to search the cell phone did not include any temporal limitation, it
did not limit the contents or types of files on the cell phone that could be accessed and
searched, and it contained no search protocols limiting how the officers could search for
the evidence of the crime at issue. Instead, it contained catchall language that authorized
officers to search everything on the phone. The Court of Appeals held that the search
warrant violated the Fourth Amendment’s particularity requirement, and thus was invalid.
CONSTITUTIONAL LAW – FOURTH AMENDMENT – GOOD FAITH
EXCEPTION – The Court of Appeals held that the police officers acted reasonably in
relying on the search warrant for Petitioner’s cell phone. The incorporated supporting
affidavit could reasonably be read to limit the search to evidence of the crime of robbery.
In the absence of a decision of this Court stating that such a warrant would not satisfy the
particularity requirement, the officers did not act unreasonably in relying on the warrant.
Circuit Court for Prince George’s County IN THE COURT OF APPEALS
Case No. CT18-1622X
Argued: March 3, 2022
OF MARYLAND
No. 46
September Term, 2021
ANTHONY J. RICHARDSON
v.
STATE OF MARYLAND
*Getty, C.J.
Watts
Hotten
Booth
Biran
Battaglia, Lynne A.
(Senior Judge, Specially Assigned)
McDonald, Robert N.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Biran, J.
Filed: August 29, 2022
*Getty, C.J., now a Senior Judge, participated in
the hearing and conference of this case while an
active member of this Court. After being recalled
Pursuant to Maryland Uniform Electronic Legal
Materials Act
pursuant to Maryland Constitution, Article IV,
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Section 3A, he also participated in the decision
2022-08-29 12:00-04:00 and adoption of this opinion.
Suzanne C. Johnson, Clerk
Chief Justice John G. Roberts observed in Riley v. California that modern cell
phones are akin to powerful “minicomputers.”1 Because today’s smartphones contain
information touching on “nearly every aspect” of a person’s life, “from the mundane to the
intimate,” an unfettered search of a cell phone by law enforcement will “expose to the
government far more than the most exhaustive search of a house.”2 In Riley, the Supreme
Court considered the privacy implications of widespread smartphone use for one of the
exceptions to the Fourth Amendment’s warrant requirement, a search incident to arrest.
The Court concluded:
Modern cell phones are not just another technological convenience. With
all they contain and all they may reveal, they hold for many Americans “the
privacies of life.” The fact that technology now allows an individual to carry
such information in his hand does not make the information any less worthy
of the protection for which the Founders fought. Our answer to the question
of what police must do before searching a cell phone seized incident to an
arrest is accordingly simple – get a warrant.[3]
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. In the case before us here, police did obtain a warrant to search a
suspect’s cell phone. One of the questions we must decide in this case is whether that
warrant complied with the Fourth Amendment’s requirement to describe with particularity
1
Riley v. California, 573 U.S. 373, 393 (2014).
2
Id. at 395-96 (emphasis deleted).
3
Id. at 403 (cleaned up).
“the place to be searched, and the persons or things to be seized” 4 or whether it was, in
effect, a “general warrant” that allowed police to engage in the type of exploratory
rummaging that led the Founders to adopt the protections of the Fourth Amendment.
After a school resource officer broke up a fight in which Petitioner Anthony J.
Richardson was involved, Richardson’s backpack dropped from his body to the ground.
The officer and Richardson reached for the backpack simultaneously; the officer picked it
up before Richardson could do so. Richardson then ran from the scene. Soon afterwards,
the officer opened the backpack. Among its contents were a firearm, three cell phones, and
Richardson’s school ID card. Further investigation established that one of the phones in
Richardson’s backpack had been stolen in a robbery three days earlier. The police
connected one of the other phones in the backpack to the perpetrators of that robbery, after
which they obtained a warrant to search that cell phone. The warrant authorized the officers
to search 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].”
After he was charged in the Circuit Court for Prince George’s County with armed
robbery and other offenses, Richardson moved to suppress the fruits of the warrantless
search of his backpack and of the warranted search of the cell phone. The circuit court
denied Richardson’s suppression motion as to both searches, and Richardson entered a
4
U.S. CONST. amend. IV.
2
conditional guilty plea under which he preserved his right to appeal the circuit court’s
adverse suppression rulings. The Court of Special Appeals affirmed the circuit court’s
denial of Richardson’s suppression motion.
As discussed below, the warrantless search of Richardson’s backpack was
permissible because Richardson abandoned the backpack before the officer searched it.
With respect to the search of the cell phone, we conclude that the warrant failed to comply
with the particularity requirement of the Fourth Amendment because it authorized
investigators to search everything on the phone. However, based on the detailed
information about the specific crime under investigation that was contained in the affidavit
submitted as part of the application for the search warrant, which was incorporated into the
warrant itself, we conclude that the officers reasonably relied on the warrant in executing
the search of the cell phone. Thus, the good faith exception to the exclusionary rule applies
to the fruits of the cell phone search. For this reason, we affirm the judgment of the Court
of Special Appeals.
I
Background
A. The Search of the Backpack
On September 28, 2018, a large fight broke out behind Crossland High School in
Temple Hills, Maryland. Corporal Myron Young of the Prince George’s County Police
Department, who served as a school resource officer at Crossland, responded to a call about
the fight. When he arrived on the scene, Corporal Young saw approximately 30 students
engaged in the melee. A young man later identified as Richardson was “throwing punches”
3
with other students when Corporal Young intervened. Corporal Young was familiar with
most of the students at Crossland High School, but he did not recognize Richardson, who,
it turned out, attended a different high school.
Corporal Young grabbed another young man who was trying to punch Richardson
from behind, effectively ending the fisticuffs in which Richardson specifically was
involved. As Richardson got up from the ground, a backpack strapped across his body fell
to the ground. Richardson and Corporal Young reached for the backpack at the same time,
but it was Corporal Young who picked it up. Corporal Young thought it was suspicious
that Richardson tried to grab the bag, instead of focusing on the other young men who were
still fighting nearby. After Corporal Young picked up the bag, Richardson immediately
fled the scene at “full speed.” Had Richardson not fled, Corporal Young would have
detained him, as well as the other person with whom Richardson had been fighting.
When Corporal Young picked up the backpack, he noticed that the “bag had a decent
amount of weight to it,” and he “suspected that there was most likely a weapon in the bag.”
Within one or two minutes of his picking up the bag and Richardson’s flight, Corporal
Young opened the backpack. He did not pat the backpack down before opening it. In the
backpack, Corporal Young saw a silver and gray Smith & Wesson semiautomatic handgun.
He also found an identification card for Richardson associated with a different school, three
cell phones, and some cash, among other items. Based on his review of Richardson’s school
ID card, Corporal Young was able to positively identify Richardson as the person he saw
drop the backpack and flee.
4
B. The Police Connect Richardson to an Armed Robbery.
One of the cell phones found in Richardson’s backpack was a Rose Gold iPhone 8+
that subsequently was determined to have been stolen from Jonathan James-Parks in an
armed robbery in District Heights, Maryland, on September 25, 2018. James-Parks had
arranged to buy a PlayStation 4 from a seller on the mobile marketplace application “letgo.”
When he arrived at a pre-arranged meeting point to complete the purchase, a man asked
James-Parks if he was “Jonathan.” When James-Parks said he was, another individual came
out from a concealed location wearing a mask, pointed a handgun at James-Parks, and
demanded that James-Parks hand over his property. James-Parks gave the robber his
iPhone and his wallet containing approximately $140 in cash, debit cards, and other items.
The two assailants fled the scene, and James-Parks reported the robbery to police.
James-Parks gave police the letgo account information for the person who had agreed to
sell him the PlayStation 4.
One of the other phones in Richardson’s backpack was a T-Mobile Space Gray
iPhone SE with an International Mobile Equipment Identity (“IMEI”5) number of
356600080434043 (the “T-Mobile iPhone SE”). Police sent a message to the letgo account
that the purported seller of the PlayStation 4 had used to communicate with James-Parks.
5
Regarding an IMEI number, one wireless carrier advises customers: “Think of [the
IMEI number] as your phone’s fingerprint – it’s a 15-digit number unique to each device.
Phone carriers and manufacturers share IMEI numbers to enable tracking of smartphones
that may be stolen or compromised.” What to Understand About IMEI Numbers, Verizon
Wireless, Aug. 25, 2021, available at https://perma.cc/HN7B-UW98.
5
The T-Mobile iPhone SE then produced an alert that it had received a message via the letgo
application.
C. The Warrant to Search the T-Mobile iPhone SE
On October 12, 2018, Detective M. Lembo6 of the Prince George’s County Police
Department applied for a warrant to search the T-Mobile iPhone SE. In the section of
Detective Lembo’s supporting affidavit titled “PROBABLE CAUSE (FACTUAL
BASIS),” Detective Lembo included the information described above about the armed
robbery of James-Parks on September 25. Detective Lembo also provided an account of
the fight at Crossland involving Richardson on September 28, as well as Corporal Young’s
recovery of the backpack and the handgun and cell phones that were in it, including the
Rose Gold iPhone 8+ and the T-Mobile iPhone SE.
Detective Lembo further wrote in the affidavit that, “[w]hile in possession of the
T-Mobile Space Gray iPhone SE IMEI: 356600080434043 a message was sent to the
suspect LetGo account by [another detective]. The T-Mobile Space Gray iPhone SE
IMEI: 356600080434043 then produced an alert that it had just received a message via the
LetGo application.” Detective Lembo continued:
This Detective believes that the T-Mobile Space Gray iPhone SE IMEI:
356600080434043 could contain 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,
6
Only the first letter of Detective Lembo’s first name is included in the warrant
materials.
6
voicemails, oral and/or written communication and any other data stored
within the cell phone that are related to the [crime7].
In the section of the affidavit entitled “JUSTIFICATION FOR THE PLACE TO BE
SEARCHED AND ITEMS TO BE SEIZED,” Detective Lembo wrote:
Your affiant knows that when crimes are committed by more than one
person, the individuals committing the crime communicate in advance to
plan the crime. When cellular phones are used, certain information is
generated and stored in the cellular phone, including call records, text
messages, video messages, and picture messages. Furthermore, the call
records can created [sic] connections between co-conspirators by showing
the contact and communication they have leading up to the crime. Finally,
the contact lists maintained in the phone can show a connection between the
phone number whose records are being analyzed and a suspects [sic] being
investigated.
Next, in the “DESCRIPTION OF THE ITEMS TO BE SEIZED,” Detective Lembo
sought approval to seize “[a]ll information, data, photographs, videos, detail logs, contact
7
Detective Lembo included an apparent typographical error at this point in the
affidavit. Detective Lembo referred to the crime as “carjacking,” but there was no
carjacking mentioned in the affidavit. Rather, Detective Lembo only described the armed
robbery of Jonathan James-Parks. In describing his duties elsewhere in the affidavit,
Detective Lembo stated that he “investigates citizen armed robberies, shootings, and
carjacking.” A plausible explanation for this error in identifying the crime under
investigation as carjacking is that Detective Lembo drafted the affidavit for this search
warrant using an earlier affidavit involving a carjacking as a template, and inadvertently
retained a reference to “carjacking” in this affidavit. It appears Detective Lembo made a
similar error earlier in the affidavit when writing that there was probable cause to believe
that “there is property subject to seizure under the laws of this State and more particularly
in violation of Annotated Code of Maryland Section CR-3.405(b)1.” Section 3-405(b) of
the Criminal Law Article prohibits carjacking.
Richardson did not argue in the circuit court, nor has he argued on appeal, that the
erroneous references to carjacking in the affidavit rendered the search warrant defective or
otherwise provide any basis for suppression of the evidence obtained in the search of the
T-Mobile iPhone SE.
7
lists, and call histories maintained inside of T-Mobile Space Gray iPhone SE IMEI:
356600080434043[.]” (Line break omitted.)
A Judge of the Circuit Court for Prince George’s County noted that the affidavit
was subscribed and sworn in his presence on October 12, 2018. On the same date, the same
Judge signed a search warrant directed to Detective Lembo stating:
Upon reviewing the Application and the accompanying Affidavit of
Detective M. Lembo #3821, Prince George’s County Police Department,
which is incorporated into this Warrant, I find there exists probable cause to
issue this Search and Seizure Warrant. You are therefore commanded with
the necessary and proper assistants to search forthwith the following place,
person, and/or motor vehicle and seize the following specified items:
1. You shall conduct a search on the place, person, and/or motor vehicle
located at:
T-Mobile Space Gray iPhone SE IMEI: 356600080434043
You shall seize the following items, evidence, and/or contraband:
All 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
T-Mobile Space Gray iPhone SE IMEI: 356600080434043.
The warrant further instructed the officers:
Upon execution of this Warrant, you shall leave an inventory of the items
seized, together with a copy of this Warrant, Application, and supporting
Affidavit (unless previously sealed by court order) with the person from
whom the items are seized, or with the person in charge of the premises, or
if neither of those persons is present, then in a conspicuous place on the
premises.
8
D. Additional Investigation
Police obtained documents from letgo, which indicated that the letgo account
associated with the purported seller of the PlayStation 4 was registered to Malicai Hezekiah
Grant. James-Park subsequently identified Grant as the person who asked him if he was
Jonathan, prior to the masked assailant threatening him with a handgun and demanding that
he hand over his property. James-Park also identified the Rose Gold iPhone 8+ found in
Richardson’s backpack as his own, and told the police that the handgun found in
Richardson’s backpack looked like the one that was used to rob him.
The search of the T-Mobile iPhone SE revealed text messages between Richardson
and Grant discussing and planning robberies through use of the letgo app. Police extracted
approximately 6,000 pages of material from the T-Mobile iPhone SE.
On December 20, 2018, Richardson was indicted in the Circuit Court for Prince
George’s County on charges of armed robbery with a dangerous weapon, assault in the first
degree, use of a firearm in the commission of a felony, possession of a regulated firearm
by a person under 21, and related offenses.
E. The Suppression Hearing and Conditional Guilty Plea
Richardson moved to suppress evidence discovered in the warrantless search of the
backpack and in the warranted search of the T-Mobile iPhone SE. At the motions hearing,
Richardson argued that the warrant to search the cell phone constituted a forbidden general
warrant because it permitted police to search and seize “any and all information” and “any
and all data.” He also argued that the good faith exception to the exclusionary rule was
inapplicable because “the warrant is so lacking [in] particularity that [an] officer would not
9
be able [to] reasonably rely on it[.]” The State argued that the warrant was valid under the
Fourth Amendment.
The State then called Corporal Young as a witness. Corporal Young testified about
the fight at Crossland and Richardson’s immediate flight from the scene after Corporal
Young picked up the backpack. Richardson did not call any witnesses. Richardson’s
attorney argued that Corporal Young unlawfully searched the backpack, and that
Richardson did not abandon it when he ran away.
The circuit court credited Corporal Young’s testimony and denied Richardson’s
motion. The court ruled that Corporal Young lawfully searched the backpack, and,
alternatively, that Richardson abandoned the backpack when he ran away. The court also
denied Richardson’s motion to suppress the fruits of the cell phone search, rejecting
Richardson’s argument about the “alleged defect in the [search] warrant.”
On September 18, 2019, Richardson entered a conditional guilty plea to conspiracy
to commit robbery and wearing, carrying, and transporting a handgun. Richardson
preserved his right to appeal the circuit court’s denial of his suppression motion. The court
subsequently sentenced Richardson to four years of imprisonment, all but one year
suspended (to serve on home detention), on the conspiracy count. The court sentenced
Richardson to three years on the handgun charge, all suspended, consecutive to the
sentence on the conspiracy count.
F. Appeal
The Court of Special Appeals affirmed the circuit court’s denial of Richardson’s
motion to suppress. Richardson v. State, 252 Md. App. 363 (2021). The court held that
10
Richardson abandoned the backpack, as Richardson did not retain “any reasonable
expectation of privacy in the backpack” when he fled the area. Id. at 383. Thus, the court
held, the warrantless search of the backpack did not violate the Fourth Amendment. See id.Having held that the Fourth Amendment did not apply to the search of the backpack
because Richardson had abandoned it, the Court of Special Appeals did not address
Richardson’s arguments concerning Corporal Young’s alleged lack of reasonable
suspicion to search the backpack.
Regarding the cell phone search warrant, the Court of Special Appeals opined that
the warrant met the particularity requirement of the Fourth Amendment, based on the
court’s conclusion that “the detailed, particularized facts provided in the application and
affidavit were incorporated into the search warrant[.]” Id. at 390. The intermediate
appellate court also held that, even if the search warrant did not pass Fourth Amendment
muster, the good faith exception to the exclusionary rule applied because “the application
and affidavit as incorporated into the search warrant issued by the court contained sufficient
particularized facts for an officer to objectively and in good faith rely on the finding of
probable cause by a detached, neutral magistrate.” Id. at 392.
On October 4, 2021, Richardson filed a petition for a writ of certiorari, seeking
review of the following questions, which we rephrase slightly:
1. Did the motions court improperly deny the motion to suppress the
fruits of the warrantless search of Richardson’s backpack?
a. Where an officer picked up Richardson’s bag and searched it
immediately after the bag fell off Richardson’s person and
Richardson reached to reclaim it, did the Court of Special
Appeals err in ruling that Richardson abandoned the bag
11
because, when the officer reached for the bag at the same time
and picked it up first, Richardson ran away?
b. Assuming that the bag was not abandoned, did the motions
court err in ruling that the search of the bag was lawful where
the officer failed to articulate an objectively reasonable basis
for believing Richardson was armed and dangerous?
c. Assuming there was reasonable suspicion to believe that
Richardson was armed and dangerous, did the officer
impermissibly open the backpack without patting it down first,
where, inter alia, the officer insufficiently explained why he
skipped a pat-down, and the State did not introduce the
backpack itself (or a photograph of it)?
2. Did the motions court improperly deny the motion to suppress the
fruits of the search of the T-Mobile iPhone SE found inside the
backpack?
a. Despite being conducted pursuant to a warrant, did the search
of the cell phone violate the particularity requirement of the
Fourth Amendment because, in relevant part, the warrant
authorized the search and seizure of “[a]ll information … and
any other data stored or maintained inside” the phone?
b. Did the Court of Special Appeals err in concluding that the
warrant for the phone satisfied the particularity requirement
because it incorporated the search warrant application and
accompanying affidavit in support of it?
c. Did the Court of Special Appeals err in concluding that even if
the warrant was defective, the fruits of the search of the phone
were still admissible under the good-faith doctrine?
On November 10, 2021, we granted the petition. Richardson v. State, 476 Md. 418(2021).
12
II
Standard of Review
The validity of a suppression ruling is a mixed question of law and fact. State v.
Carter, 472 Md. 36, 54 (2021). This Court’s review of a circuit court’s denial of a motion
to suppress evidence is “limited to the record developed at the suppression hearing.”
Pacheco v. State, 465 Md. 311, 319 (2019) (internal quotation marks and citation omitted).
We assess the record “in the light most favorable to the party who prevails on the issue that
the defendant raises in the motion to suppress.” Norman v. State, 452 Md. 373, 386 (2017).
We accept the trial court’s factual findings unless they are clearly erroneous. Carter, 472
Md. at 54-55. “The ultimate determination of whether there was a constitutional violation,
however, is an independent constitutional evaluation that is made by the appellate court
alone, applying the law to the facts found in each particular case.” Id. at 55 (internal
quotation marks and citation omitted). We review any questions of law de novo, without
any special deference to the views of the lower courts. Id.III
Discussion
The Fourth Amendment of the United States Constitution guarantees “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures[.]” U.S. CONST. amend. IV. The Fourth Amendment also provides
that “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.”
Id.13
The Supreme Court has often said that “‘the ultimate touchstone of the Fourth
Amendment is ‘reasonableness.’” Riley v. California, 573 U.S. at 381-82 (quoting Brigham
City v. Stuart, 547 U.S. 398, 403 (2006)). “It remains a cardinal principle that searches
conducted outside the judicial process, without prior approval by judge or magistrate, are
per se unreasonable under the Fourth Amendment ̶ subject only to a few specifically
established and well-delineated exceptions.” California v. Acevedo, 500 U.S. 565, 580
(1991) (internal quotation marks and citations omitted).
Evidence obtained in violation of the Fourth Amendment will ordinarily be
inadmissible under the exclusionary rule. Thornton v. State, 465 Md. 122, 140 (2019).
However, the “significant costs” of the exclusionary rule have led the Supreme Court to
deem it “applicable only ... where its deterrence benefits outweigh its substantial social
costs.” Carter, 472 Md. at 55-56 (quoting Utah v. Strieff, 579 U.S. 232, 237 (2016)). The
Supreme Court has recognized several exceptions to the exclusionary rule, including the
good faith doctrine. See United States v. Leon, 468 U.S. 897 (1984). Under the good faith
exception, evidence will not be suppressed under the exclusionary rule if the officers who
obtained it acted in objectively reasonable reliance on a search warrant. Id. at 922-24.
A. The Warrantless Search of Richardson’s Backpack
Fourth Amendment protection from a warrantless search does not extend to property
that has been abandoned by its owner. Stanberry v. State, 343 Md. 720, 731 (1996)
(citations omitted). “By abandoning property, the owner relinquishes the legitimate
expectation of privacy that triggers Fourth Amendment protection.” Id. In assessing
whether property has been abandoned, “[f]irst, we ask whether the individual, by his
14
conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that
he sought to preserve something as private.” Bond v. United States, 529 U.S. 334, 338
(2000) (cleaned up). And “[s]econd, we inquire whether the individual’s expectation of
privacy is one that society is prepared to recognize as reasonable.” Id. (cleaned up).
The test for abandonment of property in a search and seizure context under the
Fourth Amendment is distinct from the property law concept of abandonment. 1 Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.6(b) (6th ed. 2020,
Dec. 2021 update) (citations omitted). In the law of property, “the question is whether the
owner has … relinquished his interest in the property so that another, having acquired
possession, may successfully assert his superior interest.” Id. However, “[i]n the law of
search and seizure … the question is whether the defendant has, in discarding the property,
relinquished his reasonable expectation of privacy so that its seizure and search is
reasonable within the limits of the Fourth Amendment.” Id. (citation omitted). Thus, a
person can retain a property interest in an item but at the same time relinquish their
reasonable expectation of privacy in it. Id.
“Although the Fourth Amendment abandonment inquiry focuses on the property
owner’s actual expectation of privacy, a subjective question, courts must frequently rely
on objective indications of the owner’s intent.” Stanberry, 343 Md. at 732; see also United
States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000) (“Because this is an objective test, it
does not matter whether the defendant harbors a desire to later reclaim an item; we look
solely to the external manifestations of his intent as judged by a reasonable person
possessing the same knowledge available to the government agents.”). A property owner’s
15
“intent may be inferred from words spoken, acts done, and other objective facts…. All
relevant circumstances existing at the time of the alleged abandonment should be
considered.” Duncan v. State, 281 Md. 247, 265 (1977) (citation omitted). In Stanberry,
this Court enumerated several specific considerations for determining whether property
was abandoned, including: 1) “the location of the property and … whether the area is
secured”; and 2) “whether the owner requested a third party to watch or protect the
property.” 343 Md. at 733.
In this case, the objective facts indicate that Richardson intended to relinquish his
privacy interest in the backpack when he fled the scene. After Corporal Young picked up
the backpack, Richardson did not say anything to Corporal Young. He did not ask Corporal
Young to hold on to the backpack for him until things calmed down in the area. He did not
say he had to go, but would be back in a few minutes. He did not ask Corporal Young why
he had picked up the backpack. He did not say, “That’s mine, please give it back to me.”
Richardson did none of those things, nor did he say or do anything else after Corporal
Young picked up the backpack to suggest that he intended to return to the scene and retrieve
the backpack at a later time. Rather, as soon as he saw that Corporal Young had the
backpack, Richardson ran off at “full speed.” Richardson knew he had not left the backpack
in a secure location or in the care of a person who understood that he intended to return for
it later.8 At that point, in light of what had just transpired, Richardson reasonably
8
On this point, compare United States v. Most, 876 F.2d 191, 192, 196-97 (D.C.
Cir. 1989) (defendant did not abandon his bag, where he left it with store clerk after asking
her to hold it for him before he left), with United States v. Nowak, 825 F.3d 946, 948-49
(8th Cir. 2016) (defendant held to have abandoned his backpack in the passenger seat of
16
understood that someone would look through the backpack, if for no other reason than to
try to determine to whom it and its contents belonged.
It is true that, before Corporal Young picked up the backpack, Richardson indicated
that he wanted to retain possession of the backpack – and his expectation of privacy in its
contents – by reaching for it. Based on this circumstance, Richardson contrasts this case
with other abandonment cases in which individuals, upon seeing police, discarded objects
while fleeing.
This is a distinction without a difference. Richardson’s initial expression of intent
to maintain his privacy interest in the backpack did not set that intent in stone. Richardson’s
subsequent flight showed that he changed his mind. See Hawley v. Commonwealth, 144
S.E.2d 314, 315-17 (Va. 1965) (holding that the defendant abandoned his car in a motel
parking lot when, after telling the manager that he would return in three or four days, the
defendant did not do so and the car was still there when police were summoned more than
a week later). A person’s intent to maintain their expectation of privacy in an object can
change in a matter of days, as apparently was the case in Hawley, or in a few seconds, as
occurred here.
Richardson also attempts to distinguish this case from other abandonment-by-flight
cases on the basis that, here, the flight followed a thwarted attempt to retain his property.9
his friend’s car when he fled the car following a traffic stop, and where he did not ask the
friend to store or safeguard the backpack for him, but instead said nothing at all, “leaving
the backpack behind and leaving [the friend] ‘amazed’ at [his] flight”).
9
In the trial court and before us, Richardson has conceded that Corporal Young did
not unlawfully seize the backpack merely by picking it up from the ground. Nor do we
17
But this distinction, too, is immaterial. When someone sees a police officer, runs off, and
discards an object while on the move, it is clear that the person, until the moment of
discarding, manifested an intent to maintain their expectation of privacy in the object. The
fact that Richardson manifested his pre-flight intent by reaching for his backpack, rather
than by maintaining continuous possession of the backpack, is of no moment.10
In sum, despite Richardson’s initial reach for his backpack after it fell, we hold that
Richardson relinquished all reasonable expectation of privacy in the backpack when he
fled the scene. It follows that Richardson abandoned his backpack before Corporal Young
searched it, and that the circuit court correctly denied Richardson’s motion to suppress
evidence based on the warrantless search of the backpack.11
perceive, based on the record established at the motions hearing, that Corporal Young
“meaningfully interfered” with Richardson’s possessory interest in the backpack merely
by picking it up. See United States v. Jacobsen, 466 U.S. 109, 113 (1984); see also United
States v. Va Lerie, 424 F.3d 694, 706 (8th Cir. 2005) (“Because seizure is defined as some
meaningful interference with an individual’s possessory interests in his property, not all
police interference with an individual’s property constitutes a Fourth Amendment seizure,
i.e., the police do not seize property every time they handle private property.”). At the
moment he picked up the bag, Corporal Young did not objectively indicate to Richardson
that he (Corporal Young) intended to retain the backpack. By not asking Corporal Young
to return the backpack and instead immediately fleeing, Richardson forewent the
opportunity to learn what Corporal Young would have done with the backpack if
Richardson had asked him to return it.
10
Richardson also notes that he fled only after being assaulted and while other fights
were still in progress nearby. To the extent he argues that this circumstance undermines
the trial court’s finding that he abandoned the backpack, we disagree. Corporal Young
came to Richardson’s defense upon his arrival at the scene, after which the fighting in
Richardson’s immediate area “pretty much stopped.” If Richardson was concerned about
his safety, he could have remained with Corporal Young until all fighting came to an end.
11
Because Richardson abandoned the backpack, Corporal Young’s subsequent
search of the backpack did not implicate the Fourth Amendment. Accordingly, like the
18
B. The Cell Phone Search Warrant
1. The Search Warrant Did Not Comply with the Fourth Amendment’s
Particularity Requirement.
To comply with the Fourth Amendment, a search warrant: (1) must be based on
probable cause; (2) must be supported by oath or affirmation; and (3) must describe with
particularity “the place to be searched, and the persons or things to be seized.” U.S. CONST.
amend. IV; Groh v. Ramirez, 540 U.S. 551, 557 (2004). The search warrant that the officers
executed on the T-Mobile iPhone SE complied with the first two of these requirements: it
was based on probable cause, and it was supported by a sworn affidavit. However, it failed
the particularity requirement.
a. The Particularity Requirement
The particularity requirement of the Fourth Amendment protects against general and
overbroad warrants that leave the scope of the search to the discretion of law enforcement.
See, e.g., State v. Jennings, 942 N.W.2d 753, 768 (Neb. 2020); see also Maryland v.
Garrison, 480 U.S. 79, 84 (1987) (“The manifest purpose of [the] particularity requirement
was to prevent general searches”; this “requirement ensures that the search will be carefully
tailored to its justifications, and will not take on the character of the wide-ranging
exploratory searches the Framers intended to prohibit.”); United States v. George, 975 F.2d
72, 75 (2d Cir. 1992) (particularity requirement prohibits police from “indiscriminate[ly]
rummaging through citizens’ personal effects”).
Court of Special Appeals, we will not address Richardson’s other contentions concerning
the search of the backpack.
19
As alluded to at the outset of this opinion, the emergence of the modern cell phone
as an omnipresent aspect of American life has presented challenges for the application of
the Fourth Amendment that were previously unknown:
Cell phones differ in both a quantitative and a qualitative sense from other
objects that might be kept on an arrestee’s person. The term “cell phone” is
itself misleading shorthand; many of these devices are in fact minicomputers
that also happen to have the capacity to be used as a telephone. They could
just as easily be called cameras, video players, rolodexes, calendars, tape
recorders, libraries, diaries, albums, televisions, maps, or newspapers.
One of the most notable distinguishing features of modern cell phones is
their immense storage capacity. Before cell phones, a search of a person
was limited by physical realities and tended as a general matter to constitute
only a narrow intrusion on privacy…. Most people cannot lug around every
piece of mail they have received for the past several months, every picture
they have taken, or every book or article they have read – nor would they
have any reason to attempt to do so.
Riley v. California, 573 U.S. at 393-94. The Court observed that the storage capacity of
cell phones and the “apps” that provide “tools for managing detailed information about all
aspects of a person’s life,” combined with the pervasiveness of cell phones in American
society, made it “no exaggeration to say that many of the more than 90% of American
adults who own a cell phone keep on their person a digital record of nearly every aspect of
their lives – from the mundane to the intimate.” Id. at 395. These considerations, among
others, led the Supreme Court to hold in Riley that imposing the requirement to obtain a
warrant before searching a cell phone incident to arrest was necessary as a “meaningful
constraint,” id. at 399, on the power of law enforcement officers to intrude on the “privacies
of life” for many Americans. Id. at 403 (internal quotation marks and citation omitted).
20
“Vigilance in enforcing the probable cause and particularity requirements is …
essential to the protection of the vital privacy interests inherent in virtually every modern
cell phone and to the achievement of the ‘meaningful constraints’ contemplated in Riley.”
Burns v. United States, 235 A.3d 758, 773-74 (D.C. 2020) (quoting Riley, 573 U.S. at 399).
Courts are “obligated – as ‘subtler and more far-reaching means of invading privacy have
become available to the Government’ – to ensure that the ‘progress of science’ does not
erode Fourth Amendment protections.” Carpenter v. United States, 138 S. Ct. 2206, 2223
(2018) (quoting Olmstead v. United States, 277 U.S. 438, 473-74 (1928) (Brandeis, J.,
dissenting)).
The particularity requirement is usually not difficult to apply in the “physical
world.” See Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and
Particularity in Cell Phone Searches, 69 VAND. L. REV. 585, 598 (2016) (“Gershowitz”).
For example, if police officers apply for a search warrant based on testimony from an
informant that a suspect is involved in drug trafficking without specifying the location
where the illegal activity is occurring, a judge should not automatically issue warrants for
the suspect’s home, office, car, and person. See id. (“Absent some limitation curtailing the
officers’ discretion when executing the warrant, the safeguard of having a [judicial officer]
determine the scope of the search is lost.”) (citing George, 975 F.2d at 76). Instead, in that
situation, the judge “should demand more information about where the narcotics are likely
to be found so that the search warrant can be tailored to a particular location where there is
probable cause to believe narcotics will be located.” Id.21
The particularity requirement is arguably of even greater importance in the context
of computers and smartphones than it is in the physical world, given the ability of
smartphones to store “millions of pages of text, thousands of pictures, or hundreds of
videos,” Riley, 573 U.S. at 394, and of computers to store much more still. See United
States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009) (“The modern development of the
personal computer and its ability to store and intermingle a huge array of one’s personal
papers in a single place increases law enforcement’s ability to conduct a wide-ranging
search into a person’s private affairs, and accordingly makes the particularity requirement
that much more important.”). Without understating the problem posed by a general warrant
to search someone’s home prior to the digital age, a general warrant to search a computer
or a smartphone today magnifies that problem exponentially.
Yet, it has proven to be more challenging for law enforcement agencies and courts
to apply the particularity requirement in the digital world than in the physical world. As
electronic data can be hidden in multiple formats and places in a cell phone, or on a
computer, it can be difficult for officers to specify in advance the sections of the device
that should be searched. See Gershowitz at 599. And issuing judges have sometimes been
caught between a rock and a hard place, attempting to ensure the particularity that the
Fourth Amendment requires without unduly hampering law enforcement officers from
obtaining the evidence that the affiant has shown is probably located somewhere in a cell
phone or another electronic device. In recent years, issuing judges around the country have
attempted to strike the proper balance by including reasonable restrictions on officers’
authority to search cell phones and other electronic devices. Those restrictions have varied
22
depending on the facts and circumstances of the specific cases before the issuing judges.
They have included the following:
i. Restricting “How”: Search Protocols
Some issuing judges have denied law enforcement’s requests for cell phone search
warrants where agents did not provide a search protocol or provided one that was too
general. See Gershowitz at 617-18. In In re Cellular Telephones, No. 14-MJ-8017-DJW,
2014 WL 7793690 (D. Kan. Dec. 30, 2014), United States Magistrate Judge David J.
Waxse declined to issue a warrant authorizing agents to search cell phones in the custody
of the U.S. Drug Enforcement Administration for “any names, addresses, telephone
numbers, text messages, digital images, video depictions, or other identification data or
communications that are evidence of [certain drug crimes]” without including a search
warrant protocol that appropriately limited how the agents could search for such items. Id.
at *1. Judge Waxse stated that
[t]he government must provide the court with as specific a description of the
place to be searched and the things to be seized as the circumstances
reasonably allow. Failure to do so “offends the Fourth Amendment because
there is no assurance that the permitted invasion of a suspect’s privacy and
property are no more than absolutely necessary.” [Electronically stored
information], by its nature, makes this task a complicated one. Regarding the
place to be searched, … in the digital universe, particular information is not
accessed through corridors and drawers, but through commands and queries.
As a result, in many cases, the only feasible way to specify a particular
‘region’ of the [device] will be by specifying how to search. Similarly, in
attempting to describe the things to be seized, often the way to specify
particular objects or spaces will not be by describing their physical
coordinates but by describing how to locate them. By providing a search
protocol explaining how it will separate what is permitted to be seized from
what is not, the government can more easily and satisfactorily explain to the
court how it will decide where it is going to search.
23
Id. at *8 (footnotes and citations omitted). Judge Waxse advised that, when the government
provides a proposed search protocol, it “should not compromise the thoroughness of its
description by trying to avoid the use of technical language. In fact, the court wants a
sophisticated technical explanation of how the government intends to conduct the
search[.]” Id. (internal quotation marks and citations omitted). Judge Waxse denied the
government’s application for a search warrant without prejudice to resubmission “once it
includes a search protocol that addresses the [court’s] concerns.” Id. at *11.
United States Magistrate Judge John M. Facciola similarly denied without prejudice
an application to search an iPhone where the government did not provide a proposed search
protocol. Matter of the Search of Apple iPhone IMEI 01388803738427, 31 F. Supp. 3d
159, 169 (D.D.C. 2014). Judge Facciola stated that “a sufficient search protocol, i.e. an
explanation of the scientific methodology the government will use to separate what is
permitted to be seized from what is not, will explain to the Court how the government will
decide where it is going to search – and it is thus squarely aimed at satisfying the
particularity requirement of the Fourth Amendment.” Id. at 166. In providing guidance to
the government about what would satisfy the Fourth Amendment, Judge Facciola
explained:
[T]his Court is not requiring a search protocol so that it may specify how the
warrant is to be executed. Instead, the protocol will explain to the Court how
the government intends to determine where it will search (which “parts” – or
blocks – of the iPhone’s … flash drive) and how those decisions with respect
to how the search will be conducted will help limit the possibility that
locations containing data outside the scope of the warrant will be searched….
Instead of identifying [which] specific blocks of the iPhone’s flash drive will
be searched ahead of time – which would be impossible – the Court is instead
asking the government to explain its methodology for determining, once it is
24
engaged in the search, how it will determine which blocks should be searched
for data within the scope of the warrant…. This is a subtle but …
constitutionally significant distinction.
Id. at 167 (footnotes and citations omitted). Judge Facciola further explained that the
general information he had previously received from the government concerning its search
methods – that “it uses ‘keyword searches for related terms’ and ‘computer-assisted
scans[]’” – while “a useful step in the right direction, … still do[es] not actually give the
Court a search protocol as the Court has defined the term.” Id. at 168. In Judge Facciola’s
view, “the government’s statement that it will use a ‘computer-assisted scan’ is equivalent
to saying, … that it will seize ‘all records’ relevant to a particular crime. It tells the Court
nothing about what will actually happen and does not provide a means of searching so that
this Court is assured that it is the type of particularized search that the Fourth Amendment
demands.” Id.
Judge Facciola continued:
The government need only tell the Court what it already intends to do and
what it does in every other similar search of an iPhone. The government
should not be afraid to use terms like “MD5 hash values,” “metadata,”
“registry,” “write blocking” and “status marker,” nor should it shy away from
explaining what kinds of third party software are used and how they are used
to search for particular types of data. The Court is not dictating that particular
terms or search methods should be used. Instead, the Court is attempting to
convey that it wants a sophisticated technical explanation of how the
government intends to conduct the search so that the Court may conclude
that the government is making a genuine effort to limit itself to a
particularized search.
Id. Finally, Judge Facciola explained why requiring a search protocol should not make the
government concerned that it is forever limiting its ability to search more deeply in the
phone:
25
Any concerns about being locked into a particular search protocol are
unnecessary for two reasons. First, the government can always return for
additional authorization of this Court as needed. Second, the application need
only explain that some searches require additional techniques and that what
is proposed is merely what the government intends to do at the time it submits
its application, based on its experience searching such devices and in light of
the particular data it seeks to seize.
Id. (emphasis deleted).12
We do not suggest that judges who issue cell phone search warrants in Maryland
must follow the practices of Judges Waxse and Facciola in any particular case. However,
we find the observations of those judges concerning search protocols to be useful, and we
recommend that issuing judges in Maryland consider including search protocols in cell
phone search warrants in appropriate cases. To the extent issuing judges opt to include
search protocols in cell phone warrants, it will be up to them, in the first instance, to decide
how best to balance the Fourth Amendment’s particularity requirement with law
enforcement’s need to search a cell phone for evidence of a crime, in crafting the search
12
Some courts have been reluctant to require search protocols specifying how
search warrants for electronic devices should be executed. See, e.g., United States v.
Garcia-Alvarez, No. 14-cr-0621, 2015 WL 777411, at *5 (S.D. Cal. Feb. 24, 2015)
(concluding that cell phone search warrant was sufficiently particular; “[a]lthough it may
have been better if the warrant had included a search protocol that minimized unnecessary
intrusion into Defendant’s personal data,” precedent did not require such protocols); United
States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005) (“This court has never required
warrants to contain a particularized computer search strategy.”); United States v. Upham,
168 F.3d 532, 537 (1st Cir. 1999) (“The warrant process is primarily concerned with
identifying what may be searched or seized – not how – and whether there is sufficient
cause for the invasion of privacy thus entailed.”); United States v. Lustyik, 57 F. Supp. 3d
213, 229 (S.D.N.Y. 2014) (noting in computer and cell phone search case that the Second
Circuit does not require search protocols).
26
protocol. We expect that law enforcement officers who apply for cell phone search
warrants will suggest specific search protocols in appropriate cases.
ii. Restricting “Where, What, and When”: Limiting the Search to Specific
Areas or Content in a Cell Phone, or for Specific Time Frames
In some cases, rather than requiring search protocols, which restrict how law
enforcement officers search a cell phone, issuing judges may decide to impose limits on
where the officers may search in the phone, or on what specifically they may look for, and
for which time period(s). See Gershowitz at 629 et seq.; State v. Fairly, 457 P.3d 1150,
1154 (Wash. Ct. App. 2020). For example, if there is probable cause to believe that
evidence of a crime will be found in text messages, but not in photos, videos, or any other
applications on a particular phone, then the issuing judge reasonably may limit the search
warrant to the text messaging applications found on the phone, rather than authorize the
officers to access the entire phone. See Gershowitz at 633. When the officers know the
specific type of evidence they are looking for, and where the evidence is stored on a cell
phone, the issuing judge may well decide to limit the officers’ search to those locations in
order to comply with the particularity requirement. See, e.g., In re Nextel Cellular
Telephone, No 14-MJ-8005, 2014 WL 2898262, at *13 (D. Kan. June 26, 2014) (observing
that, “[j]ust as probable cause to believe that a stolen lawnmower may be found in a garage
will not support a warrant to search an upstairs bedroom, probable cause to believe drug
trafficking communication may be found in [a] phone’s … mail application will not support
the search of the phone’s Angry Birds application”). Thus, we would expect that, in
appropriate cases, issuing judges will limit searches of cell phones to specific applications
27
and/or types of applications that officers have reason to believe the suspect used in
furtherance of the crimes under investigation. See United States v. Winn, 79 F. Supp. 3d
904, 919 (S.D. Ill. 2015) (“The major, overriding problem with the description of the object
of the search – ‘any or all files’ – is that the police did not have probable cause to believe
that everything on the phone was evidence of the crime of public indecency.”).
In some cases, it may be sufficient to limit the officers to search for specific items
on the phone. For example, if there is probable cause to believe that a suspect used a
friend’s phone to record a sex crime, the issuing judge reasonably could limit the search of
that phone to the recording itself (in the absence of the affiant explaining why there was
probable cause to believe that evidence of the crime would be contained in other items on
the phone). That would presumably authorize a narrow search of any application on the
phone that could have made or stored the recording.
Perhaps the most common limitation that issuing judges should consider including
in a warrant to satisfy the particularity requirement is a temporal restriction. In this regard,
Commonwealth v. Snow, 160 N.E.3d 277 (Mass. 2021), is instructive. In Snow, following
a shooting, the police obtained a search warrant to search the defendant’s cell phone for
the following information:
Cellular telephone number; electronic serial number, international mobile
equipment identity, mobile equipment identifier or other similar
identification number; address book; contact list; personal calendar, date
book entries, and to-do lists; saved, opened, unopened, draft, sent, and
deleted electronic mail; incoming, outgoing, draft, and deleted text messages
and video messages; history of calls sent, received, and missed; any
voicemail messages, including those that are opened, unopened, saved, or
deleted; GPS information; mobile instant message chat logs, data and contact
28
information; internet browser history; and any and all of the fruits or
instrumentalities of the crime of Murder.
Id. at 281-82. The detective asked for and received permission to search without any date
restriction because “it was unknown ‘when the weapon used was acquired and when any
related conspiracy may have been formed.’” Id. at 282.
The Supreme Judicial Court of Massachusetts held that “the lack of time restriction
rendered the warrant impermissibly broad,” and remanded the case for a determination
“whether the proffered evidence fell outside what would have been a reasonable temporal
limit.” Id. at 285. The court opined that “[t]he magnitude of the privacy invasion of a cell
phone search utterly lacking in temporal limits cannot be overstated.” Id. at 288.
“Consequently, to be sufficiently particular, a warrant for a cell phone search
presumptively must contain some temporal limit.” Id. (citing Winn, 79 F. Supp. 3d at 921;
United States v. Zemlyansky, 945 F. Supp. 2d 438, 459 (S.D.N.Y. 2013)); see also Moats
v. State, 455 Md. 682, 706 (2017) (Adkins, J., concurring) (“We should not condone a
warrant authorizing police to search the entirety of a cell phone absent any temporal
limitation on the information to be searched. A warrant of such generality raises the same
concerns our Framers sought to address by crafting the Fourth Amendment.”). The Snow
Court also suggested that, given the privacy interests at stake in a cell phone search, “the
temporal restriction in an initial search warrant for a cell phone should err on the side of
narrowness,” especially in light of the officers’ ability to apply for a new warrant if, during
the initial search, they “uncover information giving rise to probable cause to broaden their
search of the cell phone.” 160 N.E.3d at 288. The Court emphasized that “[d]etermining
29
the permissible parameters for a cell phone search is a fact-intensive inquiry and must be
resolved based on the particular facts of each case.” Id. (citation omitted).
iii. The Use of Catchall Terms That Allow Officers to Seize All Data on a
Cell Phone Is Generally Not Permitted.
Numerous courts have held that a search warrant that uses overbroad and/or
“catchall” language effectively permitting the searching officers to seize all data on a cell
phone or other electronic device is invalid. See, e.g., State v. Henderson, 854 N.W.2d, 616,
625, 633 (Neb. 2014) (warrants to search cell phones violated particularity requirement
where they authorized a search of “[a]ny and all information,” as well as “any other
information that can be gained from the internal components and/or memory Cards”); State
v. Allen, 406 P.3d 89, 93 (Or. Ct. App. 2017) (holding that search warrant for cell phone
failed the particularity requirement because it “placed no limitations on the types of files
to be seized and examined”); Otero, 563 F.3d at 1132 (government conceded and reviewing
court agreed that warrant “authorizing a search of ‘any and all information and/or data’
stored on computer” was “the sort of wide-ranging search that fails to satisfy the
particularity requirement”); United States v. Clough, 246 F. Supp. 2d 84, 87 (D. Me. 2013)
(warrant that authorized seizure of any and all text messages and digital images on
computer was “clearly excessive” and was not sufficiently particularized); United States v.
Fleet Mgmt. Ltd., 521 F. Supp. 2d 436, 439 (E.D. Pa. 2007) (warrant to search hard drives
of three computers on a vessel lacked particularity because it sought “[a]ny and all data in
the computers or contained in the computer storage devices, including, but not limited to,
software and all records including e-mail, photographs, and documents relating to the
30
ship’s operation, engineering, maintenance, pollution control equipment, navigational
charts, and crew”). We agree that, in general, such a warrant fails to comply with the
particularity requirement.
iv. Broader Searches Can Be Permitted Where There Is Probable Cause
to Believe That a Narrower Search Will Miss Hidden or Mislabeled
Evidence.
With respect to a small subset of cases, most notably child pornography and
financial crimes, experience has shown that some perpetrators purposely mislabel
electronic files or hide evidence in unusual places. Thus, a search warrant authorizing a
broad forensic analysis of a cell phone can be appropriate where the warrant limits the
search for evidence of one of these crimes (but an issuing court should consider requiring
the inclusion of search protocols to restrict how the searching officers conduct such an
analysis). See Gershowitz at 633.
We envision this exception as applying rarely. With respect to most cell phone
search warrants, given the privacy interests at stake as explained in Riley, the particularity
requirement is not satisfied by authorizing officers to search for any and all items that are
evidence of a particular crime or crimes. See, e.g., Burns, 235 A.3d at 774-75 (search
warrant invalid for lack of particularity where it authorized officers to search for “all
records” and “any evidence” on the phones related to violations of the first-degree murder
statute; “[t]he warrants imposed no meaningful limitations as to how far back in time police
could go or what applications they could review and, instead, endorsed the broadest
possible search without regard to the facts of the case or the limited showings of probable
cause set forth in the affidavits”). “Particularity” in the context of the Fourth Amendment
31
does not refer to the particular crime(s) under investigation; rather, it refers to the particular
“place to be searched, and the persons or things to be seized.” U.S. CONST. amend. IV.
v. Summary
There is no “one size fits all” solution for ensuring particularity in cell phone search
warrants. In submitting and ruling upon every application for a cell phone search warrant,
the affiant and the issuing judge 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 to locate the evidence for which there is probable cause to
search. “[T]he ultimate touchstone of the Fourth Amendment is reasonableness.” Riley,
573 U.S. at 381-82 (internal quotation marks and citation omitted). As discussed above,
the affiant, in drafting the proposed warrant, and the issuing judge, in deciding what the
warrant authorizes and requires, have a number of tools at their disposal. Among other
things, affiants can suggest temporal restrictions as well as limitations on the applications
that will be searched, with the understanding that they can later apply for a second, broader
warrant if their initial search provides a basis to do so. Or the affiants can propose search
protocols that will guide the agents in how to conduct their searches. If an issuing judge
receives a proposed warrant that does not include any such suggested restrictions, the judge
may require the affiant to add one or more of them in a revised warrant. Ultimately, the
key point is that a search warrant for a cell phone must be specific enough so that the
32
officers will only search for the items that are related to the probable cause that justifies
the search in the first place.13
b. The Warrant to Search the T-Mobile iPhone SE
In the case before us, the search warrant that Detective Lembo obtained for the
T-Mobile iPhone SE found in Richardson’s backpack authorized officers to search and
seize the following:
All 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
T-Mobile Space Gray iPhone SE IMEI: 356600080434043.
(Emphasis added.)
Richardson argues that, in authorizing the officers to search for “all information”
and “any other data stored or maintained inside of” the phone, the warrant violated the
Fourth Amendment’s particularity requirement. We agree.
The State does not dispute that the phrases italicized above are examples of
“catchall” language that courts have determined to be impermissibly broad. Indeed, the
State does not attempt to defend the constitutionality of the warrant based only on its
language. Rather, the State contends that the warrant incorporated Detective Lembo’s
13
We recognize that the judges who review applications for cell phone search
warrants have varying degrees of understanding of how cell phones work, what the
applications on a phone are capable of doing, etc. Accordingly, we recommend that the
Judicial College of Maryland develop a training course to help educate judges on matters
that will likely be relevant to the consideration of cell phone search warrant applications,
including search protocols and other potential limitations on cell phone searches.
33
supporting affidavit and that, when read to include that affidavit, the warrant satisfies the
particularity requirement of the Fourth Amendment.
We agree with those courts that have held that a court reviewing the validity of a
search warrant “may construe [it] with reference to a supporting application or affidavit if
the warrant uses appropriate words of incorporation, and if the supporting document
accompanies the warrant.” Groh, 540 U.S. at 557-58 (summarizing federal appellate
cases). The parties here dispute whether Detective Lembo’s affidavit accompanying the
search warrant was incorporated in the warrant. We agree with the State that the record
provides sufficient evidence to conclude that the affidavit was so incorporated.
In approving the warrant, the issuing judge stated: “Upon reviewing the Application
and the accompanying Affidavit of Detective M. Lembo #3821, Prince George’s County
Police Department, which is incorporated into this Warrant, I find there exists probable
cause to issue this Search and Seizure Warrant.” (Emphasis added.) The issuing judge
further directed the officers: “Upon execution of this Warrant, you shall leave an inventory
of the items seized, together with a copy of this Warrant, Application, and supporting
Affidavit (unless previously sealed by court order) with the person from whom the items
are seized[.]” (Emphasis added).14
It is clear from the plain language of the warrant that it incorporated Detective
Lembo’s supporting affidavit. In addition, a reasonable inference to draw from the record
is that the warrant, application, and affidavit were maintained as a single package. Defense
14
There is no indication in the record that Detective Lembo’s affidavit was ever
sealed.
34
counsel was provided with all of these documents, and in fact, introduced them as a single
exhibit at the suppression hearing. In addition, as the State notes (without dispute from
Richardson), there is no indication in the record that police seized digital items that were
not described in one of the specific categories outside of the “catchall” terms of the warrant
and accompanying affidavit. Thus, we infer that the searching agents were given the
affidavit (or were sufficiently apprised of its information verbally). If that had not been the
case, they would not have known to look for the specific information about robberies using
the letgo app that they discovered, and presumably they would have extracted reams of
unrelated information that Richardson would have been able to point to as the product of a
fishing expedition. For these reasons, we are able to conclude that Detective Lembo’s
affidavit was incorporated into the warrant for purposes of assessing the particularity of the
warrant.
Regardless, the incorporation of the affidavit does not render this search warrant
sufficiently particular under the Fourth Amendment.15 As Richardson observes, the
affidavit also included catchall language. In the section of the affidavit entitled
“DESCRIPTION OF THE ITEMS TO BE SEIZED,” Detective Lembo sought approval to
seize “[a]ll information, data, photographs, videos, detail logs, contact lists, and call
histories maintained inside of T-Mobile Space Gray iPhone SE IMEI:
356600080434043[.]” (Line break omitted; emphasis added.) Detective Lembo did not
15
However, as discussed below, the information in the affidavit is central to our
determination that the searching officers reasonably relied on the issuance of the warrant
and, therefore, that the good faith exception to the exclusionary rule applies here.
35
include any temporal restrictions or any other limitations on the proposed search in the
affidavit that he then inadvertently failed to include in the proposed warrant itself. Just as
the warrant approved the search of everything on the cell phone, the affidavit asked for
permission to search for everything on the cell phone. It is beyond dispute that the affidavit
did not establish probable cause to search everything on the T-Mobile iPhone SE. With
respect to the vast majority of cell phone search warrants, we agree with the view expressed
by Judge Adkins in her concurring opinion in Moats that this Court “should not condone a
warrant authorizing police to search the entirety of a cell phone absent any temporal
limitation on the information to be searched” because “[a] warrant of such generality raises
the same concerns our Framers sought to address by crafting the Fourth Amendment.”
Moats, 455 Md. at 706 (Adkins, J., concurring).16
In this case, there also should have been limitations placed on the applications that
the officers were permitted to access when searching the phone. A warrant (with a
16
Our endorsement of the views Judge Adkins expressed in her concurring opinion
in Moats does not require us to overrule or otherwise limit Moats. The issues before the
Court in Moats were: (1) does an individual’s suspected involvement in a crime and a
police officer’s belief that a cell phone could be used in that crime, without more, constitute
probable cause to seize and search that individual’s cell phone; and (2) did the good faith
exception to the exclusionary rule apply in Moats’s case? See Moats, 455 Md. at 693. The
Majority first held that the post-arrest retention of Moats’s cell phone while officers applied
for and obtained a search warrant was permissible. Id. at 696-98. With respect to the
validity of the search warrant, particularity was not at issue. Rather, Moats claimed that the
affiant did not establish probable cause to believe that evidence of a crime would be found
on the phone. See id. at 698-99. The Majority concluded that the warrant was supported by
probable cause, and did not reach the State’s alternative argument concerning the
good-faith exception. See id. at 686, 701-03. Judge Adkins, joined by the Honorable
Clayton Greene, Jr., concurred in the judgment, concluding that the good faith exception
to the exclusionary rule was applicable to the warrant at issue. Id. at 706 (Adkins, J.,
concurring).
36
reasonable temporal restriction) that limited the officers to searching the letgo application,
as well as texting and other communication applications, call logs, and navigation/location
data for evidence relating to the crime of robbery, would have been reasonable.
None of the State’s contentions persuades us that this cell phone search warrant, as
supplemented by the affidavit, complied with the particularity requirement of the Fourth
Amendment.
First, the State asks to consider that some courts have upheld warrants authorizing
expansive searches of cell phones. As an example, the State cites a Nebraska Supreme
Court decision, State v. Short, 964 N.W. 2d 272 (Neb. 2021), cert. denied, 142 S. Ct. 1155(2022). In that case, the Court disapproved of warrant language authorizing a search of
“any and all” information when those terms were not linked to a specific crime, but
permitted a cell phone warrant authorizing the search of wide swaths of available data
where the warrant did not include such language. Id. at 316. The Court stated:
The most important constraint in preventing unconstitutional exploratory
rummaging is that the warrant limit the search to evidence of a specific crime,
ordinarily within a specific time period, rather than allowing a fishing
expedition for all criminal activity. We agree that a brief examination of all
electronic data associated with a cell phone is usually necessary in order to
find where the information to be seized is located, and such examination is
reasonable under the Fourth Amendment.
Id. (footnote omitted).
Short highlights the shortcomings of the search warrant in this case. The search
warrant for the T-Mobile iPhone SE did not contain any temporal limitations, and it did
include language akin to the “any and all” phrasing that, as we have already explained, will
not satisfy the particularity requirement in most cases.
37
Second, the State cites an Ohio case for the proposition that a catch-all provision in
a warrant “must be read in conjunction with the list of particularly described items which
preceded it pertaining to the crimes alleged.” State v. Maranger, 110 N.E.3d 895, 911
(Ohio Ct. App. 2018) (citation omitted). But in the section of Detective Lembo’s affidavit
in which he described the items for which he was seeking authorization to search, he did
not link those items to the robbery of Mr. James-Parks. Although Detective Lembo
provided the information about the robbery in the probable cause section of the affidavit,
it is the request to seize particular items – which was set apart in its own section of
Detective Lembo’s affidavit – that has primary significance in assessing compliance with
the particularity requirement.17 Moreover, nowhere in the affidavit did Detective Lembo
explain why there was probable cause to believe that at least two of the categories of
records he sought to seize – pictures and videos – would contain evidence of the robbery.
This undercuts the State’s attempt to rely on the items that came after “[a]ll information
[and] data” in Detective Lembo’s identification of the items for which he was seeking
authority to search. Detective Lembo’s description of items to be seized reads more like a
template than a carefully considered list of categories based on the affiant’s assessment of
probable cause.
Finally, we are unpersuaded by the State’s contention that we must assess the
particularity requirement in light of the “Goldilocks problem” that confronts a police
17
For the same reason, and contrary to the State’s argument, severing the catchall
language from either the warrant itself or the “description of the items to be seized” in the
affidavit, would not cure the particularity problem.
38
officer who suspects that a cell phone contains evidence of a crime. According to the State,
“[i]f investigators are too specific in describing what they plan to search, they risk being
unable to discover evidence of a crime…. If police instead describe a broad range of items
they wish to search on a phone, they run the risk of the warrant being characterized as an
impermissible ‘general’ warrant. Under Richardson’s approach, they must draft language
that is ‘just right,’ lest the warrant be ineffective or defective.”
The Fourth Amendment requires that a search warrant be reasonable, not “just
right,” in describing the items to be seized with particularity. Reasonable minds may differ
on how best to draft a proposed search warrant so that it complies with the particularity
requirement, given the unique facts and circumstances of a specific investigation. One
issuing judge may believe that a temporal limitation is all that is required in a given case,
while another issuing judge reviewing a similar case may decide that a warrant will be
sufficiently particular if it allows the officers to search in only one or two applications on
the phone in question. Courts reviewing the decisions that issuing judges make about how
to comply with the particularity requirement should be mindful of the challenges inherent
in the cell phone context. But, in the end, the Constitution demands particularity, and
issuing judges therefore must ensure that all search warrants, including cell phone search
warrants, are sufficiently particular. While reasonable minds may differ at times on
whether a warrant is sufficiently particular, one thing is clear: given the privacy interests
at stake, it is not reasonable for an issuing judge to approve a warrant that simply authorizes
police officers to search everything on a cell phone. Because that is what the search warrant
did in this case, it violated the particularity requirement of the Fourth Amendment.
39
2. The Good Faith Exception Applies, As Officers Executing the Warrant Acted
Reasonably in Relying on the Warrant’s Validity.
The exclusionary rule, which was adopted by the Supreme Court in Weeks v. United
States, 232 U.S. 383, 389 (1914), and applied to the states through the Fourteenth
Amendment to the United States Constitution, is “ordinarily ... the appropriate remedy for
a violation of the Fourth Amendment.” Agurs v. State, 415 Md. 62, 76 (2010) (quoting
Myers v. State, 395 Md. 261, 278 (2006)). When a court determines that a violation of the
Fourth Amendment has occurred, however, exclusion of the fruits of the unreasonable
search is not automatic. Herring v. United States, 555 U.S. 135, 137 (2009). Instead, the
exclusion of evidence “has always been our last resort, not our first impulse.” Hudson v.
Michigan, 547 U.S. 586, 591 (2006). The underlying rationale behind the exclusionary rule
is to deter misconduct by law enforcement:
The deterrent purpose of the exclusionary rule necessarily assumes that the
police have engaged in willful, or at the very least negligent, conduct which
has deprived the defendant of some right. By refusing to admit evidence
gained as a result of such conduct, the courts hope to instill in those particular
investigating officers, or in their future counterparts, a greater degree of care
toward the rights of an accused. Where the official action was pursued in
complete good faith, however, the deterrence rationale loses much of its
force.
Leon, 468 U.S. at 919 (internal quotation marks and citations omitted).
Therefore, a reviewing court should only exclude evidence “if the law enforcement
officer had knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.” Id. (internal quotation marks and citation
omitted). The exclusionary rule does not apply where the officers reasonably relied on the
issuance of the warrant. Id. That is the case because “the marginal or nonexistent benefits
40
produced by suppressing evidence obtained in objectively reasonable reliance on a
subsequently invalidated search warrant cannot justify the substantial costs of exclusion.”
Id. at 922. For these reasons, “suppression of evidence obtained pursuant to a warrant
should be ordered on a case-by-case basis and only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule.” Id. at 918.
There are four recognized circumstances in which an officer’s reliance on a search
warrant would not be reasonable and the good faith exception therefore would not apply:
(1) the issuing judge was misled by information in an affidavit that the officer
knew was false or would have known was false but for the officer’s reckless
regard for the truth;
(2) the issuing judge wholly abandoned his or her detached and neutral judicial
role;
(3) the warrant was based on an affidavit that was so lacking in probable cause
as to render official belief in its existence entirely unreasonable; and
(4) the warrant was so facially deficient, by failing to particularize the place to
be searched or the things to be seized, that the executing officers could not
reasonably believe it to be valid.
See Patterson v. State, 401 Md. 76, 104 (2007) (citing Leon, 468 U.S. at 923). Of these
four situations, only the fourth one is at issue in this case.
Richardson argues that the good faith exception should not apply here, because the
officers who executed the search warrant should have known that the warrant did not meet
the Fourth Amendment’s particularity requirement, and thus their reliance on the warrant
was unreasonable. We disagree.
41
If Detective Lembo’s affidavit had not been incorporated into the warrant, the good
faith exception would not be applicable.18 But the information in the affidavit, which was
incorporated in the warrant, provided the executing officers with detailed information
about the robbery under investigation, including the suspects’ use of the letgo app.
Although we read the affidavit as seeking authorization to search for everything on the
phone, an officer reading the affidavit reasonably could have interpreted it as limiting the
search for evidence of the crime under investigation – i.e., the robbery of Jonathan
James-Parks. Until today, this Court has not analyzed whether a cell phone search warrant
that allows officers to search an entire phone for evidence of a particular crime satisfies the
particularity requirement. Courts around the country have answered this question
differently. Compare, e.g., Burns, 235 A.3d at 774-75 (search warrant invalid for lack of
particularity where it authorized officers to search for “all records” and “any evidence” on
the phones related to violations of the first-degree murder statute), with State v. Johnson,
576 S.W. 3d 205, 222 (Mo. Ct. App. 2019) (citing cases for the proposition that “the
particularity requirement in a warrant authorizing the search of all data or all files in a cell
phone is met so long as the warrant constrains the search to evidence of a specific crime”).
In this opinion, we have stated that, in this case and with respect to the vast majority of
Maryland cell phone search warrants, the answer to that question is “no.” But we cannot
fault the officers who executed this search warrant for thinking that the answer was “yes.”
18
Thus, two of the cases upon which Richardson relies – Clough and Fleet Mgmt.
– are distinguishable. In those cases, the affidavits in support of the search warrants were
not incorporated into the warrants. See Clough, 246 F. Supp. 2d at 88; Fleet Mgmt., 521 F.
Supp. 2d at 444.
42
In sum, the warrant – as supplemented by the incorporated affidavit – was not so
facially deficient that the executing officers acted unreasonably in relying on it. Thus, the
good faith exception to the exclusionary rule applies here.19 For this reason, we conclude
that the circuit court properly denied Richardson’s motion to suppress the fruits of the
warrant to search the T-Mobile iPhone SE.
IV
Conclusion
Richardson abandoned his backpack when he fled from the scene of the fight
without saying a word to Corporal Young about his backpack. Thus, the warrantless search
of the backpack was constitutionally permissible. The warrant that authorized the search
of the T-Mobile iPhone SE did not satisfy the particularity requirement of the Fourth
Amendment, as it allowed police to search everything on the device. However, we
conclude that the officers executing the search warrant acted reasonably in relying on the
search warrant, and thus the good faith exception to the exclusionary rule applies here.
Accordingly, the trial court properly denied Richardson’s motion to suppress evidence.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED; COSTS
TO BE PAID BY PETITIONER.
19
With this opinion, we make clear to Maryland law enforcement officers and to
issuing judges that a warrant that permits police to search everything on a cell phone, with
no limitations whatsoever on the executing officers’ discretion, violates the particularity
requirement of the Fourth Amendment. That understanding will necessarily inform a
good-faith analysis with respect to any such cell phone search warrants that are issued after
today.
43