Michigan Supreme Court: Unrestricted phone searches violate Fourth Amendment

Several years ago I had the opportunity to observe when a detective came to a magistrate's office to petition for a search warrant. The warrant sought to search the contents of a person's phone, essentially without any limitations. The alleged crime was assault and battery on a family member. When asked "What is your probable cause that the phone is likely to contain evidence of the commission of this crime?" the detective had basically nothing to say (having put nothing to that effect in the affidavit for the search warrant) other than some vague (cooked up on the spot?) statements about the "mobile nature of our modern society and the fact that cell phones are everywhere and everyone has one." The magistrate denied the warrant, but it's a sad testament to the propensity of law enforcement to cut corners that that search warrant affidavit was far from the last one I saw that targeted the cell phone of an accused and claimed that it was necessary to search the entire contents of the phone.

That’s because law enforcement is encourage to give least amount of effort to find any kind of damning evidence that a DA can use. The detective doesn’t care about justice but instead closing the case. If I have access to your entire phone, I can use anything I find against you as probable cause whether it’s related to the crime or not.

I would say the goal is probably securing a conviction for the crime the detective believes took place: Closing the case is not inherently enough, and while there are some, I doubt most investigators sleep well at night that they convicted someone they think is innocent.

Our standard is "beyond a reasonable doubt" and ideally in a working justice system, judges should be throwing out any evidence which is prejudicial. So your detective has a general motive to find as much evidence as possible, overwhelming evidence, ideally, such that after all legal challenges have been passed through there is still enough evidence left on the table to concretely prove a case.

Obviously there's a lot of places our justice system can and does break down, but it is generally designed on the concept everyone involved in prosecution and defense should work to create the best possible case for their understanding.

I've never met an DA investigator or a DA that gave a single hoot if someone was factually innocent (this is actually rare). Even this "going through the phone" thing might be ruled illegal, but that only matters if the case goes as far as filing a motion to suppress. And if you are represented by a public defender then I would say your chances are slim at having that happen.

What normally happens in cases like this is that each side barter with what they have (DA: "we went through his phone and found photos of him with guns, drugs and money" vs. PD: "the search was illegal, if you pursue this I'll file for suppression") to get the longest sentence they can (DA) vs. the shortest sentence (PD) on a plea deal.

I think the statistic is maybe 1% of criminal cases go to trial?

Yeah, the US (mis)uses the plea deal to an appalling extent. It's amazingly fucked.

Most other countries don't have the concept, or if they do, its use is generally fairly minimal, and heavily regulated - oftentimes, it might be "plead guilty to this one murder" in the case of a multiple homicide, to avoid having three separate costly trials.

I think a big part of the problem is if a person goes to trial in the US, if they still get a charge, even if it is much lower than what they were originally charged with, they are on the hook for all the court costs on top of all the fines and fees and jail costs and 10 different line item charges they will get already. And most people balk at the exorbitant costs when it is presented.