11.5Scope of Search Warrant¹

“[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 (2020). “[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. 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 require 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.

“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.

“[T]he particularity requirement disallows the issuance of warrants authorizing police to search the entirety of a person’s cell phone contents for evidence of a particular crime; the massive scale of the personal information people store on their mobile devices means that there must be some limits to the scope of the search.” People v Carson, ___ Mich App ___, ___ (2024). “This is not to say that the police must be told precisely what they are looking for or where to find it, but there must be guardrails in place.” Id. at ___. In Carson, the warrant at issue amounted to “a general warrant that gave the police license to search everything on defendant’s cell phone in the hopes of finding anything, but nothing in particular, that could help with the investigation.” Id. at ___. “The only hint of specificity was the opening reference to ‘the investigation of Larceny in a Building and Safe Breaking,’ but this small guardrail was negated by the ensuing instruction to search for such items by searching and seizing the entirety of the phone’s contents.” Id. at ___. Indeed, the “warrant that was actually issued placed no limitations on the scope of the search and authorized the police to search everything, specifically mentioning photographs and videos.” Id. at ___ (noting the warrant “authorized the modern equivalent of the police combing through a person’s entire home in search of any evidence that might somehow implicate the person in the crime for which they were a suspect.”) Thus, the search warrant “was invalid because it failed to particularly describe what the police sought to search and seize.” Id. at___.

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).² 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).