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69 Vand. L. Rev. 585 (2016)
The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches

handle is hein.journals/vanlr69 and id is 607 raw text is: 


VOLUME 69                    APRIL 2016                  NUMBER 3


      The Post-Riley Search Warrant:

 Search Protocols and Particularity in

                Cell Phone Searches

                       Adam M. Gershowitz*

       Last year, in Riley v. California, the Supreme Court required police to
procure a warrant before searching a cell phone. Unfortunately, the Court's
assumption that requiring search warrants would be simple and very
protective of privacy was overly optimistic. This article reviews lower court
decisions in the year since Riley and finds that the search warrant requirement
is far less protective than expected. Rather than restricting search warrants to
the narrow evidence being sought, some magistrates have issued expansive
warrants authorizing a search of the entire contents of the phone with no
restrictions whatsoever. Other courts have authorized searches of applications
and data for which no probable cause existed. And even when district and
appellate courts have found these overbroad search warrants to be defective,
they have almost always turned to the good faith exception to save the searches
and allow admission of the evidence.
       This Article calls on courts to take the Fourth Amendment's
particularity requirement seriously before issuing search warrants for cell

   *   Associate Dean for Research and Faculty Development & Kelly Professor of Teaching
Excellence, William & Mary Law School. I am grateful to Jeff Bellin, Orin Kerr, Paul Marcus,
Tommy Miller, and Paul Ohm for helpful comments and to Elizabeth Rademacher and Louis
Mascola for research assistance.

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