NMSC: Warrant to Search Cell Phone Is Executed When Phone Is Seized

The New Mexico Supreme Court issued an opinion earlier this week in State v. Sanchez, a direct appeal of two evidentiary issues in a first degree murder cases. The state appealed the district court’s decisions suppressing and excluding certain evidence. On direct appeal, Justice Barbara Vigil authored the Court’s opinion reversing the suppression and affirming the exclusion. In an issue of first impression, the Court held that a warrant to search the contents of a phone is “executed” for purposes of Rule 5-211 when the phone is seized.

Background

The interesting issue in this case is the motion to suppress. Pursuant to a warrant, police arrested defendant and seized various items, including his phone. The next day, they obtained an additional warrant authorizing a search of the phone. The phone was locked, however, and at the time the police were unable to unlock it.

About a year later, a new officer was assigned to the case. The new officer learned that updated tools were available to bypass the lock code on the phone. The officer sought and obtained a second warrant in December 2018. However, the police had not waited for the second warrant–they bypassed the lock and copied the phone’s contents in November 2018.

Analysis

Defendants sought to suppress the contents of the phone. First, the argued the data extraction was done without a warrant because it took place more than ten days after the first warrant and before the second warrant was requested. Second, he argued that the second warrant was based on stale evidence and did not support probable cause to search the phone. The district court rejected the second argument and granted the motion to suppress based on the first argument.

On appeal, the only question was whether the 11-month delay between the first search warrant and extracting the data from the phone violated the ten-day time limit of Rule 5-211. Rule 5-211(C) requires that a search warrant be executed within 10 days of issuance.

Whether the rule had been violated depended on what it meant to “execute” a warrant in the context of information stored on a phone. This issue had not previously been decided in New Mexico. The Defendant argued that the warrant was executed at the time the data was extracted–nearly 11 months too late. The State argued that it was executed when the phone was seized.

The Court sided with the State. Unlike the federal rules, the New Mexico rule did not have specific language governing electronic information. Nevertheless, the Court was convinced that the federal rule was the most practical one: that execution of the warrant refers to either the seizure or onsite copying of the information, and not to any later off-site copying or review. Looking to cases from other jurisdictions, the Court cataloged reasons why data might not always be able to be extracted immediately upon the seizure of a device. The federal rule took into account the complications that could arise when attempting to access the contents of a device.

Ultimately, the Court held that the warrant is executed when the phone is seized. Because the phone was seized within 10 days of the issuance of the first warrant, the State had complied with Rule 5-211’s 10-day limit, and it did not matter that the data was not accessed until 11 months later. Accordingly, the Court reversed the district court’s decision granting the motion to suppress.

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