To search your phone for evidence of a crime, police officers generally need to get a warrant from a judge or show that they have probable cause to believe that there’s evidence of a crime on the device. Even in cases in which a judge grants a warrant, any evidence obtained from the search is likely to be excluded at trial if the warrant wasn’t issued based on probable cause. As a federal court in Pensacola recently pointed out, however, judges get a lot of leeway in deciding whether to issue a warrant.
A defendant was charged in February with one count of knowingly possessing and accessing child pornography. The charge came after he went to a local MetroPCS store in Pensacola, looking for some assistance with his cell phone. The MetroPCS employee assisting him observed a large amount of pornographic material stored on the phone. The employee also said she saw a folder marked “underage,” which she didn’t open. The employee contacted a tip line at the National Center for Missing and Exploited Children.
The defendant, who was already a registered sex offender, was arrested by state police on a separate charge for failing to tell authorities that he had moved. State police took the cell phone and turned it over to the FBI, which obtained a warrant from a judge authorizing law enforcement officers to search the phone. They allegedly found some 40 images of child pornography. The defendant sought to have that evidence kept out of the trial against him. He argued that the affidavit the FBI filed in court to get the warrant wasn’t based on probable cause. The district court disagreed.