In United States v. McCall, No. 21-13092 (Oct. 27, 2023) (Rosenbaum, Branch, Brasher), the Court affirmed the denial of Mr. McCall’s motion to suppress.
The Court considered how the exclusionary rule’s good faith exception applies to the search of a cloud storage account. The warrant in question–for Mr. McCall’s iCloud account–permitted a search of almost all of the account’s data, with no time limitation. In affirming the denial of the suppression motion, the Court noted that although Fourth Amendment standards are largely settled, their application to developing areas of technology are not, and law enforcement officers operating in good faith may struggle to apply existing standards to new circumstances. Here, though the government conceded that the iCloud warrant fell short in certain respects, reasonable officers could have believed it to be valid.
Of note, with regard to a warrant’s particularity, the Court noted that the preferred method of limiting the scope of a search warrant for a cloud account will usually be time-based. In the Court’s view, by narrowing a search to the data created or uploaded during a relevant time connected to the crime being investigated, officers can particularize their searches to avoid general rummaging. As a result, cloud or data-based warrants with a sufficiently tailored time-based limitation can undermine any claim that they are the internet-era version of a general warrant.
Judge Rosenbaum concurred, writing separately to comment on the panel opinion’s conclusion that “in the mine run of cases, . . . a time-based limitation will be both practical and protective of privacy interests.” In her view, particularity’s guiding principle requires a warrant to be as specific as possible when it comes to identifying things to be searched, and that can’t be accomplished “if we artificially determine beforehand that a single criterion–say, the inclusion of a time period in a warrant–means the warrant satisfies the particularity requirement.” That is, including a time period doesn’t relieve a warrant from otherwise having to particularly describe the things to be searched and seized to the extent possible. With regard to electronic data, she believes warrants should also describe the categories or evidence sought–for instance, photographs, communications, and records–and should identify what subject matter those categories of evidence must pertain to.