11.5​Scope of Search Warrant¹⁵

A.​ Particularity Requirement

“The last two phrases of the Fourth Amendment, the particularity requirement, only allows the issuance of search warrants ‘particularly describing the place to be searched, and the persons or things to be seized.’” People v Bogucki, ___ Mich App ___, ___ (2025), quoting US Const, Am IV. “The Michigan Constitution has a substantively similar provision at Const 1963, art 1 § 11.” Bogucki, ___ Mich App at ___ (“Article 1 § 11 was amended, effective December 19, 2020, to explicitly state that a warrant is required to search or access electronic data or electronic communications.”). “The particularly requirement in describing the items to be seized is intended to provide reasonable guidance to officers executing the warrant and thereby prevent an undirected exercise of discretion in determining what is to be seized.” Id. at ___. “A general warrant, which fails to comply with the particularity requirement, is prohibited.” Id. at ___. “‘The manifest purpose of this particularity requirement was to prevent general searches.’” People v Carson, ___ Mich ___ (2025) (plurality opinion by Cavanagh, C.J.), quoting Maryland v Garrison, 480 US 79, 84 (1987). “‘By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the 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.’” Carson, ___ Mich at ___ (plurality opinion by Cavanagh, C.J.), quoting Garrison, 480 US at 84. “Whether a search warrant satisfies the particularity requirement depends on the circumstances and the types of items involved.” Carson (plurality opinion by Cavanagh, C.J.) ___ Mich at ___ (quotation marks and citation omitted). “A failure to describe the items to be seized with as much particularity as the circumstances reasonably allow offends the Fourth Amendment.” Id. at ___ (cleaned up). Indeed, “in many cases, an exact description of what law enforcement should be searching for and where they should search for it is not necessarily feasible.” Id. at ___. “However, a search warrant should be as particular as the circumstances presented permit and consistent with the nature of the item to be searched.” Id. at ___.

“Search warrants are to be read in a common-sense and realistic manner.” Id. at ___ (cleaned up). Accordingly, courts focus on “practical accuracy, as opposed to technical precision, when reviewing the language of a search warrant.” Id. at ___ (quotation marks and citation omitted). However, “a technical reading does not require [courts] to indulge every possible interpretation.” Id. at ___ n 15 (quotation marks and citation omitted) (“Differences such as subject headings and paragraph formation might seem insignificant, but if we are to follow our command of reading each part of the warrant in context, these structural indicators are useful tools.”) (quotation marks and citation omitted). “Templates are, of course, fine to use as a starting point.” Id. at ___ n 15 (quotation marks and citation omitted). “But they must be tailored to the facts of each case.” Id. at ___ n 15 (quotation marks and citation omitted). “The fourth amendment requires that the government describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow.” Id. at ___ (cleaned up). “Ultimately, the degree of particularity required to adequately direct a search depends on the crime being investigated and the items sought.” Id. at ___  (recognizing that “physical searches and digital searches are not readily comparable”).

1.​Warrant Authorizing Digital Search of Cell-Phone

“The Michigan Supreme Court has declined to adopt a rule deeming it always reasonable for a police officer to review the entirety of the digital data seized, pursuant to a warrant, based on “’the mere possibility that evidence may conceivably be found anywhere on the device, or that evidence might be concealed, mislabeled, or manipulated.’” People v Bogucki, ___ Mich App ___, ___ (2025), quoting People v Hughes, 506 Mich 512, 541 (2020) (“Such a per se rule would effectively nullify the particularity requirement of the Fourth Amendment in the context of cell-phone data and rehabilitate an impermissible general warrant that would in effect give police officers unbridled discretion to rummage at will amount a person’s private effects.”) (quotation marks and citation omitted).

“Cell phones in the modern world hold ‘the privacies of life.’” People v Carson, ___ Mich ___, ___ (2025) (plurality opinion by Cavanagh, C.J.),¹⁶ quoting Riley v California, 573 US 373, 403 (2014). “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Carson, ___ Mich at ___ n 22 (cleaned up) (plurality opinion by Cavanagh, C.J.). “Accordingly, in the context of a cell-phone search, [courts] must jealously guard the requirements of the Fourth Amendment, including the particularity requirement.” Id. at ___ (“The same concerns that led us to place limits on the conduct of a search in Hughes underlie the standards we impose on warrants.”).

“Requiring additional specificity in the text of a warrant ensures that executing officers ‘reasonably direct’ their search ‘at uncovering evidence related to the criminal activity identified in the warrant.’” Carson, ___ Mich at ___ (cleaned up) (plurality opinion by Cavanagh, C.J.), quoting Hughes, 506 Mich at 540. “While it is important that officers reasonably direct their search efforts within the bounds set by the warrant, they must be armed with a sufficiently particularized warrant in order to do so.” Carson, ___ Mich at ___ n 21 (plurality opinion by Cavanagh, C.J.) (“These two requirements cannot be separated . . . .”). “Indeed, without clear guidance in the warrant about the nature and location of the evidence sought, officers cannot know where to ‘reasonably direct’ their efforts.” Id. at ___.

a.​Specifying the Crime Under Investigation

“Specifying the crime under investigation is necessary, but not usually sufficient to ensure adequate particularity in the context of a cell-phone search warrant.” Carson, ___ Mich at ___ (plurality opinion by Cavanagh, C.J.) (stating that “we cannot and do not create a per se rule of specificity that applies to all cell-phone searches”). “A caveat that the search is limited to evidence of a particular crime gives little or no clarity to an officer as to where to look, for what to look, or how to look for it.” Id. at ___ (cleaned up).

In Carson, “[t]he authorization to search every nook and cranny of the cell-phone data for ‘any and all records or documents’ and ‘any and all data’ related to safebreaking and larceny provides no meaningful constraint . . . .” Id. at ___. “Although such a wide-ranging search might uncover incriminating evidence, such exploratory rummaging is not ‘reasonably directed at obtaining evidence’ of safebreaking or larceny.” Id. at ___, quoting Hughes, 506 Mich at 516. Furthermore, “the warrant broadly allowed a search for records and documents generally ‘pertaining to the investigation of Larceny in a Building and Safe Breaking,’ not to any specific evidence that law enforcement believed it might uncover on the basis of probable cause.” Carson, ___ Mich at ___ n 16 (plurality opinion by Cavanagh, C.J.). “The lack of adequate particularity as to what officers were searching for further supports the Court of Appeals majority’s conclusion that officers were searching defendant’s cell phone ‘in the hopes of finding anything, but nothing in particular.’” Id. at ___ n 16 (cleaned up). “The lack of instruction on the scope, breadth, or focus of the search shifts the particularity requirement from the warrant, where it belongs, to the executing officer’s discretion.” Id. at ___. (“We cannot conclude that a practical reading of the search warrant at issue would sufficiently inform an executing officer how to reasonably conduct a limited and constitutionally particular search.”). Put simply, the warrant did “not inform the executing officers how to reasonably direct their search at uncovering evidence related to the criminal activity identified in the warrant.” Id. at ___ (cleaned up) (holding that the insufficiently particular warrant authorizing “the unrestrained search of defendant’s cell phone violated the Fourth Amendment”).

b.​Temporal Limitations on Cell Phone Digital Data to be Searched

“The magnitude of the privacy invasion of a cell phone search utterly lacking in temporal limits cannot be overstated.” People v Carson, ___ Mich ___, ___ (2025) (plurality opinion by Cavanagh, C.J.) (quotation marks and citation omitted)¹⁷; see Riley v California, 573 US 373, 394 (2014) (noting the privacy consequences of cell-phone searches considering that “the data on a phone can date back to the purchase of the phone, or even earlier”). “And such temporal information will generally be easy to include in the search warrant.” Carson, ___ Mich at ___ (plurality opinion by Cavanagh, C.J.). “That is, even if the drafter of a search warrant cannot specifically describe the evidence sought, generally an investigating officer will be able to identify a relevant time frame for the criminal activity.” Id. at ___. “Put simply, when information concerning the relevant time frame of the criminal activity exists, this time limitation should be included in the search warrant to ensure adequate particularity.” Id. at ___.

c.​Categorical Limitation and Specificity About Types of Cell Phone Digital Data to be Searched

“Another common particularity limit focuses on the categories of data to be searched.” People v Carson, ___ Mich ___, ___ (2025) (plurality opinion by Cavanagh, C.J.). “Oftentimes, questions about the types of data to be searched are bound up in the question of the nexus between the item to be seized and criminal behavior.” Id. at ___ n 19 (cleaned up) (noting “courts have invalidated warrants that allow officers to search and seize information beyond what is otherwise justified by a showing of probable case in the affidavit”). 

“The need for specificity about the types of data expected to be encountered and searched must be weighed against the fact that law enforcement often will not be certain what evidence exists and where it will be located.” Id. at ___. “This does not, however, free them from the obligation to provide the most specific description possible and to support a request to search each category of data mentioned in a warrant affidavit.” Id. at ___. “Nor does it permit magistrates to approve boundless searches of electronic data when the information available provides a basis for a more reasonably tailored search.” Id. at ___. “The proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation.” Id. at ___ (quotation marks and citation omitted). “A search warrant may be sufficiently particular even though it describes the items to be seized in broad or generic terms if the description is as particular as the supporting evidence will allow, but the broader the scope of a warrant, the stronger the evidentiary showing must be to establish probable cause.” Id. at ___ (quotation marks and citation omitted) (observing that “the warrant here might have contained adequate particularity if it had directed law enforcement to search for text messages or communications (categorical limitation) between defendant and [his accomplice] during August and September 2019 (temporal limitation)”).

2.​Warrant Authorizing Physical Search

A search warrant authorizing a search of the grounds or outbuildings within a residence’s curtilage does not violate the Fourth Amendment or Const 1963, art 1, § 11, if the warrant authorized a search of the residence. See People v McGhee, 255 Mich App 623, 625 (2003) (upholding searches of detached garage and fenced-in dog run adjacent to the garage, where warrants were not restricted to a search of the residences only, but also included all “spaces” or “storage areas” accessible from the property addresses). However, where “the search warrant describes with great particularity the [only] residence [located on the property]” and “[does] not authorize—even indirectly—the search of other structures located on the property,” “the search of those structures [is] a warrantless search.” People v DeRousse, 341 Mich App 447, 462, 464 (2022).

“A warrant authorizing the search of a premises authorizes the search of containers within the premises that might contain the items named in the warrant.” People v Daughenbaugh, 193 Mich App 506, 516 (1992), mod on other grounds 441 Mich 867 (1992).¹⁸ See People Coleman, 436 Mich 124, 130-134 (1990) (defendant’s purse in bedroom of defendant’s home was properly searched as a container that fell within the scope of the warrant, and was not an extension of defendant’s person). This rule applies to locked and unlocked containers. Daughenbaugh, 193 Mich App at 516. “[A] search warrant for ‘premises’ authorizes the search of all automobiles found on the premises.” People v Jones, 249 Mich App 131, 136 (2002).

B.​Determining Whether the Government Acted Within Scope of Search Warrant

“[I]t is well established that a search warrant allows the state to examine property only to the extent authorized by the warrant.” People v Hughes, 506 Mich 512, 534 (2020). When seized pursuant to a valid warrant, “a search of digital cell-phone data . . . must be reasonably directed at obtaining evidence relevant to the criminal activity alleged in that warrant. Any search of digital cell-phone data that is not so directed, but instead is directed at uncovering evidence of criminal activity not identified in the warrant, is effectively a warrantless search that violates the Fourth Amendment absent some exception to the warrant requirement.” Id. at 516-517. “[A] warrant to search a suspect’s digital cell-phone data for evidence of one crime does not enable a search of that same data for evidence of another crime without obtaining a second warrant.” Id. at 553-553.

“Whether a search of seized digital data that uncovers evidence of criminal activity not identified in the warrant was reasonably directed at finding evidence relating to the criminal activity alleged in the warrant turns on a number of considerations, including:

(a) the nature of the criminal activity alleged and the type of digital data likely to contain evidence relevant to the alleged activity;

(b) the evidence provided in the warrant affidavit for establishing probable cause that the alleged criminal acts have occurred;

(c) whether nonresponsive files are segregated from responsive files on the device;

(d) the timing of the search in relation to the issuance of the warrant and the trial for the alleged criminal acts;

(e) the technology available to allow officers to sort data likely to contain evidence related to the criminal activity alleged in the warrant from data not likely to contain such evidence without viewing the contents of the unresponsive data and the limitations of this technology;

(f) the nature of the digital device being searched;

(g) the type and breadth of the search protocol employed;

(h) whether there are any indications that the data has been concealed, mislabeled, or manipulated to hide evidence relevant to the criminal activity alleged in the warrant, such as when metadata is deleted or when data is encrypted; and

(i) whether, after reviewing a certain number of a particular type of data, it becomes clear that certain types of files are not likely to contain evidence related to the criminal activity alleged in the warrant.” Hughes, 506 Mich at 543-546.

“[A] court will generally need to engage in . . . a ‘totality-of-circumstances’ analysis to determine whether a search of digital data was reasonably directed toward finding evidence of the criminal activities alleged in the warrant only if, while searching digital data pursuant to a warrant for one crime, officers discover evidence of a different crime without having obtained a second warrant and a prosecutor seeks to use that evidence at a subsequent criminal prosecution. Courts should also keep in mind that in the process of ferreting out incriminating digital data it is almost inevitable that officers will have to review some data that is unrelated to the criminal activity alleged in the authorizing warrant.” Hughes, 506 Mich at 546-547. “The fact that some data reviewed turns out to be related to criminal activity not alleged in the authorizing warrant does not render that search per se outside the scope of the warrant. So long as it is reasonable under all of the circumstances for officers to believe that a particular piece of data will contain evidence relating to the criminal activity identified in the warrant, officers may review that data, even if that data ultimately provides evidence of criminal activity not identified in the warrant.” Id. at 547.

In Hughes, “the officer’s review of defendant’s cell-phone data for incriminating evidence relating to an armed robbery was not reasonably directed at obtaining evidence regarding drug trafficking–the criminal activity alleged in the warrant–and therefore the search for that evidence was outside the purview of the warrant and thus violative of the Fourth Amendment.” Id. at 517. The Hughes decision does not “hold or imply . . . that officers in the execution of a search of digital data must review only digital content that a suspect deigns to identify as pertaining to criminal activity.” Hughes, 506 Mich at 541. “Nothing herein should be construed to restrict an officer’s ability to conduct a reasonably thorough search of digital cell-phone data to uncover evidence of the criminal activity alleged in a warrant, and an officer is not required to discontinue a search when he or she discovers evidence of other criminal activity while reasonably searching for evidence of the criminal activity alleged in the warrant.” Id. at 553. “However, at the same time, . . . it is [not] always reasonable for an officer to review the entirety of the digital data seized pursuant to a warrant on the basis of the mere possibility that evidence may conceivably be found anywhere on the device or that evidence might be concealed, mislabeled, or manipulated.” Id. at 541. Officers must “reasonably limit the scope of their searches to evidence related to the criminal activity alleged in the warrant and not employ that authorization as a basis for seizing and searching digital data in the manner of a general warrant in search of evidence of any and all criminal activity.” Id. at 553.

But see People v Carson, ___ Mich ___, ___ n 12 (2025) (plurality opinion by Cavanagh, C.J.) (opining that the “wide-ranging search” authorized by the search warrant in Hughes permitting “officers to review the entire 600-page report containing the apparent totality of the defendant’s cell-phone data” would likely not “pass muster under the parameters” in Carson).¹⁹ Notably, Carson was “based on the warrant’s lack of particularity regarding the authorization to search defendant’s cell-phone data for incriminating evidence; [it did] not address the seizure of a broader swath of data, given the nature of the property at issue and the technology used to identify the data that may be permissibly searched.” Id. at ___ n 23 (noting that “the dispositive issue in Hughes was whether the police acted within the scope of the warrant, whereas . . . the issue [in Carson] concern[ed] the scope of the warrant itself”); see also Hughes, 506 Mich at 529-530 (highlighting the important distinctions between a search of cell-phone data and the seizure of that data).