With Friends Like These

A significant criminal law decision of the District of Columbia Court of Appeals reversed a murder conviction on Constitutional grounds due to an overbroad warrant authorizing a search of the defendant’s cell phone

A Superior Court jury found Mr. Burns guilty of first-degree premeditated murder while armed and related weapons offenses in the November 14, 2015 shooting death of Onyekachi Osuchukwu. The government’s theory at trial was that Mr. Burns killed Mr. Osuchukwu, his best friend, because he thought Mr. Osuchukwu was cheating him out of his fair share of the proceeds of a drug dealing business the two men operated together. Mr. Burns argued that he acted in self-defense, testifying that he shot Mr. Osuchukwu at close range only after Mr. Osuchukwu rushed him and tried to wrestle away his gun in an argument over the money.

The government prevailed at trial largely on the strength of data obtained from two cell phones seized from Mr. Burns on the day after the shooting and the testimony of the Chief Medical Examiner about the results of an autopsy performed by one of his deputies. Police obtained the cell phone data pursuant to Superior Court search warrants that authorized a review of the entire contents of Mr. Burns’s phones; the data included highly incriminating records of internet search inquiries made by Mr. Burns in the days leading up to the homicide (“Are you capable of killing your best friend?” “How does it feel when you kill someone for the first time?” “Shot placement for instant kill?”) and enabled the government to paint a compelling picture of Mr. Burns’s premeditation and deliberation. The Chief Medical Examiner’s testimony contradicted Mr. Burns’s claims about the way the shooting unfolded with detailed information about the gunshot wounds described in the autopsy report, including the absence of soot and stippling the government argued would have been observed at the site of the wounds had the shots been fired from within inches of Mr. Osuchukwu’s body.

The appeal challenged the admission of the evidence extracted in executing the search warrant

An investigator with the United States Attorney’s Office executed the search warrants a few days later using a software program called Cellebrite to extract all of the data on both phones, including data the user of the phones likely believed had been deleted.

The court

Both constitutional claims implicate important and recurring aspects of the criminal process in the District of Columbia. Virtually everyone in the District now uses a cell phone — typically a modern smart phone capable of holding an extraordinary amount of personal information related to the user and/or owner of the device…

Yet despite the ubiquity of cell phones and cell phone search warrants, this is the first case in which this court has been called on to analyze the validity of a cell phone search warrant under the Warrant Clause.

Law

A search warrant for data on a modern smart phone therefore must fully comply with the requirements of the Warrant Clause. It is not enough for police to show there is probable cause to arrest the owner or user of the cell phone, or even to establish probable cause to believe the phone contains some evidence of a crime.  To be compliant with the Fourth Amendment, the warrant must specify the particular items of evidence to be searched for and seized from the phone and be strictly limited to the time period and information or other data for which probable cause has been properly established through the facts and circumstances set forth under oath in the warrant’s supporting affidavit. Vigilance in enforcing the probable cause and particularity requirements is thus 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, 573 U.S. at 399.

Holding

We conclude that Mr. Burns has established violations of his rights under both the Fourth and the Sixth Amendments. Police sought search warrants that authorized an unlimited review of the contents of his cell phones for “any evidence” of murder even though the warrants were supported by affidavits that established probable cause for only three narrow and discrete items of data. The warrants were thus overbroad and lacking in probable cause and particularity, and the warrant judge should not have issued them. The warrants’ deficiencies, moreover, were so extreme and apparent that a reasonably well-trained police officer, with reasonable knowledge of what the law prohibits, would have known the warrants were invalid notwithstanding their approval by a judge. The good faith exception to the exclusionary rule therefore does not apply, and the trial judge should have granted Mr. Burns’s motion to suppress all of the data collected from both phones. Separately, the Chief Medical Examiner’s testimony plainly transmitted to the jury the findings of the deputy medical examiner who conducted the autopsy on Mr. Osuchukwu’s remains. Because those findings, set forth in the autopsy report and other materials maintained in the autopsy file, were made in the context of an ongoing police investigation of a homicide, the findings were “testimonial” and their communication to the jury through the Chief Medical Examiner’s testimony violated the Confrontation Clause. Both constitutional
errors prejudiced Mr. Burns at trial, and in combination they cannot be deemed harmless beyond a reasonable doubt.

Superior Court Associate Judge Kravitz (sitting by designation) authored the opinion joined by Associate Judges fisher and Easterly. (Mike Frisch)