Petition for Writ of Certiorari — Latonia Smith, Petitioner v. United States

No.

IN THE SUPREME COURT

OF THE UNITED STATES

LATONIA SMITH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Justine Bonner

Assistant Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123

Attorney for Petitioner

QUESTION PRESENTED

In Riley v. California, 573 U.S. 373 (2014), this Court established that cell phones

require enhanced Fourth Amendment privacy protections. The question presented is

whether, consistent with Riley, a warrant that fails to particularly describe cell phones as

an item to be seized—only listing “computers” and “electronic data storage devices”—

violates the Fourth Amendment.

PARTIES TO THE PROCEEDINGS

Petitioner Latonia Smith was the appellant below. Respondent United States of

America was the appellee below.

RELATED PROCEEDINGS

• United States Court of Appeals: United States v. Smith, No. 24-5419 (9th Cir.)

• United States District Court: United States v. Smith, No. 2:19-cr-00304-WQH (D.

Nev.) & 2:23-cv-02083-WQH (D. Nev.)

TABLE OF CONTENTS

Page

Table Of Authorities ........................................................................................................... vi

Opinions Below ................................................................................................................... 1

Jurisdictional Statement....................................................................................................... 2

Relevant Statutory and Constitutional Provisions ............................................................... 2

Introduction ......................................................................................................................... 2

Statement of the Case .......................................................................................................... 4

Reasons for Granting the Writ ............................................................................................. 7

I.

This court should grant review to prevent hollowing of the heightened

Fourth Amendment protection given to cell phones by this court in Riley v.

California. ................................................................................................................ 7

A.

B.

After Riley v. California, the search and seizure of cell phones

necessitates heightened sensitivity to the Fourth Amendment’s

particularity requirement. .............................................................................. 8

1.

The Riley opinion recognized that cell phone searches must

be meaningfully constrained to protect individual privacy. ............... 8

2.

A warrant must set out the scope of an authorized search with

particularity. ..................................................................................... 10

3.

Ms. Smith’s cell phone was outside the scope of a warrant

which referenced only computers and not cell phones. ................... 11

This court needs to halt the erosion of Fourth Amendment privacy

interests by requiring that a warrant to seize and search cell phones

identify the type of device with particularity. ............................................. 17

Conclusion ......................................................................................................................... 19

iv

INDEX TO APPENDIX

Appendix A: Memorandum Opinion, United States v. Smith, No. 24-5419, 2025

WL 1720524 (9th Cir. June 20, 2025) .......................................................... 1

Appendix B: Order Denying Motion Under 28 U.S.C. § 2255, United States v.

Smith, No. 2:19-cr-00304-WQH-VCF / 2:23-cv-02083-WQH, 2024

WL 3599143 (D. Nev. July 29, 2024) ........................................................... 7

Appendix C: Order Denying Petition for Rehearing or Rehearing En Banc, United

States v. Smith, No. 24-5419 (9th Cir. Sep. 11, 2025) ................................ 24

Appendix D: Affidavit in Support of Application for Search Warrant,

Docket No. 313-1 (filed 04/04/24) (pages 14-85) ................................ 25

Search Warrant Inventory,

Docket No. 312 (filed 02/22/24) (page 31) .......................................... 97

Transcript, Jury Trial Day 6,

Docket No. 246 (filed 06/04/21) (pages 53-54) ................................... 98

v

TABLE OF AUTHORITIES

Page

CASES

Carpenter v. United States,

585 U.S. 296 (2018) ............................................................................................... 3, 17

Center Art Galleries-Hawaii, Inc. v. United States,

875 F.2d 747 (9th Cir. 1989) ...................................................................................... 12

Demaree v. Pederson,

887 F.3d 870 (9th Cir. 2018) (per curiam) ................................................................. 18

Groh v. Ramirez,

540 U.S. 551 (2004) ................................................................................................... 11

Horton v. California,

496 U.S. 128 (1990) ................................................................................................... 11

Illinois v. Gates,

462 U.S. 213 (1983) ................................................................................................... 11

J.B. Manning Corp. v. United States,

86 F.3d 926 (9th Cir. 1996) ........................................................................................ 12

Marron v. United States,

275 U.S. 192 (1927) ............................................................................................. 10, 11

Maryland v. Garrison,

480 U.S. 79 (1987) ..................................................................................................... 10

Olmstead v. United States,

277 U.S. 438 (1928) ................................................................................................... 17

Riley v. California,

573 U.S. 373 (2014) ............................................................. 2, 3, 7, 8, 9, 10, 11, 17, 18

Stanford v. State of Texas,

379 U.S. 476 (1964) ................................................................................................... 11

Steagald v. United States,

451 U.S. 204 (1981) ................................................................................................... 10

vi

United States v. Comprehensive Drug Testing, Inc.,

621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam) ............................................... 18

United States v. Jones,

565 U.S. 400 (2012) ..................................................................................................... 3

United States v. Sedaghaty,

728 F.3d 885 (9th Cir. 2013) ...................................................................................... 11

United States v. Smith,

No. 24-5419, 2025 WL 1720524 (9th Cir. June 20, 2025) .......................................... 2

United States v. Smith,

No. 2:19-cr-00304-WQH-VCF, 2024 WL 3599143 (9th Cir. July 29, 2024) ............. 1

United States v. Tamura,

694 F.2d 591 (9th Cir. 1982) ...................................................................................... 11

United States v. Ventresca,

380 U.S. 102 (1965) ................................................................................................... 15

STATUTES

18 U.S.C. § 876 ................................................................................................................. 4

28 U.S.C. § 1254 ............................................................................................................... 2

28 U.S.C. § 2255 ....................................................................................................... 1, 4, 6

OTHER

Search Warrant: Search Protocols and Particularity in Cell Phone Searches,

69 Vand. L. Rev. 585 (2016) ........................................................................................ 8

Andrew D. Huynh, What Comes After “Get a Warrant”: Balancing Particularity and

Practicality in Mobile Device Search Warrants Post-Riley,

101 CORNELL L. REV. 187, 190 (2015), 694 F.2d 591 (9th Cir. 1982) ...................... 11

Rule 10 ............................................................................................................................... 7

Rule 13.3 ............................................................................................................................ 2

U.S. Const., Amend. IV ....................................................................... 2, 3, 7, 8, 10, 17, 18

vii

No.

IN THE SUPREME COURT

OF THE UNITED STATES

LATONIA SMITH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The Ninth Circuit

The petitioner, Latonia Smith, respectfully requests that a writ of certiorari issue to

review the judgment of the United States Court of Appeals for the Ninth Circuit entered

on June 20, 2025, affirming the denial of her motion to vacate her sentence under 28

U.S.C. § 2255.

Opinions Below

The district court issued an unpublished decision denying Ms. Smith’s motion to

vacate her conviction and sentence on July 29, 2024 which is available at 2024 WL

3599143 (9th Cir. July 29, 2024), and is in Appendix B. App. B at 23 The opinion of the

1

court of appeals is not published but is available at 2025 WL 1720524 (9th Cir. June 20,

2025) and is in Appendix A. App. A at 6. The Ninth Circuit denied a timely petition for

rehearing or rehearing en banc on September 11, 2025, available in Appendix C. App. C

at 24. The search warrants that are the subject of this petition and a trial transcript

reference included in this petition are not published but are provided in Appendix D.

Jurisdictional Statement

The Ninth Circuit entered its decision in this case on June 20, 2025, and denied a

timely motion for panel or en banc rehearing on September 11, 2025. This petition is

timely under Supreme Court Rule 13.3. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

Relevant Statutory and Constitutional Provisions

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

U.S. Const., Amend. IV.

Introduction

“Modern cell phones, as a category, implicate privacy concerns far beyond those

implicated by the search of” ordinary “physical items.” Riley v. California, 573 U.S. 373,

393 (2014). For that reason, in Riley, the Supreme Court unanimously held that “officers

must generally secure a warrant before conducting . . . a search [of data on a cell phone].”

2

Id. at 386. Despite Riley, the Ninth Circuit held in the present case that a warrant that did

not mention cell phones or handheld mobile electronic devices allowed officers to seize

and search Ms. Smith’s cell phone.

The Court should grant this petition to prevent the erosion of the Fourth

Amendment privacy protections established by Riley. The government cannot seize cell

phones—the “digital record of nearly every aspect of” a person’s life—without a warrant

that specifically describes cell phones among the list of items to be seized. Id. at 395.

This case is an opportunity for the Court to reiterate the unique and heightened

privacy interests that people have in the data on their cell phones, and to continue refining

what expectations of privacy are “reasonable” in the digital age. See, e.g., Carpenter v.

United States, 585 U.S. 296 (2018) (generally requiring law enforcement to obtain a

warrant before obtaining records about people from service providers); Riley, 573 U.S. at

373 (holding that cell phones require heightened Fourth Amendment protections); United

States v. Jones, 565 U.S. 400 (2012) (limiting GPS tracking). This refinement is

especially important because, as predicted in Riley, cell phones today are even more

ubiquitous and have even more storage capacity than they did in 2014, when Riley was

decided. Riley, 573 U.S. at 395. Allowing a generic reference to “computers” or

“electronic data storage devices” to include a defendant’s cell phone allows officers to

probe the depths of a person’s private life without a warrant particularly describing cell

phones.

3

Statement of the Case

This application stems from the district court’s denial of Ms. Smith’s 28 U.S.C.

§ 2255 motion to vacate her conviction and sentence for five counts of Mailing

Threatening Communications, 18 U.S.C. § 876(c), in which she argued that her trial

attorneys were ineffective for failing to move to suppress evidence derived from a search

of her iPhone, which had been seized based on a warrant that made no mention of cell

phones. App. B at 12-13, 23.

The criminal charges against Ms. Smith were based on threatening letters sent

through the mail to individuals associated with civil suits filed by Ms. Smith and her

mother against her mother’s former employer. App. D at 27. In October 2019, United

States Postal Inspectors investigating those threats secured a warrant to search Ms.

Smith’s residence. App. D at 50. Neither the search warrant nor its accompanying

affidavit referred to cell phones or other handheld communication devices, nor did they

include any stated basis to believe that Ms. Smith used a cell phone in creating or

transmitting any of the relevant communications. Instead, the affidavit described how the

letters appeared to have been generated by using a word processor and a conventional

electronic printer. App. D at 29, 31, 32, 33. The affidavit described and listed the items to

be seized in terms of items likely to have been used in generating the word-processed

letters or used with a traditional computer. App. D at 35-37. The officers indicated that

the goal of the warrant was to seize and search Ms. Smith’s laptop, for which she had

declined a consent search. App. D at 26.

4

In addition to describing the mailed threat letters, the affidavit referred to

harassing Facebook messages that preceded the letters sent over one and a half years

before the search warrant application. App. D at 27-28. However, the affidavit did not

address what type of device may have been used to generate those messages, nor did it

indicate whether evidence relating to those messages was likely to be stored for such a

long time. This contrasts with its express identification of “computers and computer

programs” as the likely source of the mailed letters and the detailed explanation of why

evidence relating to the threatening letters would likely remain on the computer and its

accessories. App. D at 33-34. In addition, the affidavit offered no suggestion that Ms.

Smith owned a cell phone or had used a cell phone in relation to those messages, again

contrasting with the warrant’s specific reference to her laptop computer as the suspected

source of the mailed letters.

Before executing the warrant, law enforcement officers learned that Ms. Smith had

allegedly traveled from Las Vegas to Reno to confront one of the letter recipients with

what appeared to be a handgun. App. D at 75-76. The officers applied “to supplement the

list of items to be seized” in the warrant to include “cellular telephone devices and any

records associated with those devices” and “any firearms or ammunition.” App. D at 74,

81.

On the evening of November 1, 2019, officers searched Ms. Smith’s residence

under the original, unsupplemented warrant and seized her iPhone. App. D at 97. The

magistrate judge did not sign the application to supplement the warrant to add cell phones

5

until over half an hour after the search was already completed and Ms. Smith’s iPhone

had been seized. App. D at 66.

A grand jury indicted Ms. Smith, charging her with five counts of mailing

threatening communications based solely on the letters. The two attorneys appointed to

represent Ms. Smith did not move to suppress her cell phone or any evidence found on it.

At trial, the government characterized the cell phone evidence as forming the “crux” of

the case because, as the only direct evidence, it definitively “prove[d] that it was [Ms.

Smith] who sent these communications.” App. D at 98. The jury convicted Ms. Smith of

all five counts.

Acting pro se, Ms. Smith filed a motion to vacate her conviction and sentence

under 28 U.S.C. § 2255, claiming that her trial counsel were ineffective because they did

not move to suppress the cell phone evidence. The district court denied her motion

without holding an evidentiary hearing. App. B at 22-23.

On appeal, following the appointment of counsel, Ms. Smith argued that her trial

attorneys did not provide reasonably adequate assistance of counsel because a motion to

suppress the cell phone evidence would have been meritorious. Op. Br. 17-33. Ms. Smith

contended that her cell phone was outside the scope of the original warrant or,

alternatively, that if the warrant allowed the seizure of cell phones, then it was overbroad

because the affidavit lacked probable cause to conclude that incriminating evidence

would be found on the phone that was never referenced. Op. Br. at 18-33. Ms. Smith

further argued that she was prejudiced by the deficient performance because the jury

6

would have reached a different verdict without the evidence derived from her iPhone. Op.

Br. 33-34.

In a memorandum disposition, the panel affirmed, reasoning that trial counsel

were not deficient for failing to move to suppress. App. A at 2-3. The court articulated

the relevant standard as requiring that “no competent attorney would think a motion to

suppress would have failed.” App. A at 2. That standard was not met, the panel reasoned,

because “[a] competent attorney could have thought the original warrant authorized

investigators to seize Smith’s cellphone” because “[c]ellphones are electronic equipment

that can be used to create or transmit threats” and, therefore, did not need to be

specifically mentioned in order to fall into the scope of the warrant. App. A at 3.

Reasons for Granting the Writ

I.

This court should grant review to prevent hollowing of the heightened Fourth

Amendment protection given to cell phones by this court in Riley v.

California.

This Court should grant the writ because a “United States court of appeals has

decided an important question of federal law that has not been, but should be, settled by

this Court.” Rule 10(c), Rules of the Supreme Court of the United States.

One of the most pressing challenges in criminal justice is the preservation of

constitutional protections for citizens’ privacy in the digital age. As this Court established

in Riley v. California, 573 U.S. 373, 386 (2014), cell phones contain such a complete

record of a person’s private life that they require extra Fourth Amendment privacy

protections. Yet the Ninth Circuit’s opinion here eviscerated those protections by treating

7

cell phones as subject to seizure any time electronic data is sought. And the problem is

widespread. See, e.g., Adam Gershowitz, The Post-Riley Search Warrant: Search

Protocols and Particularity in Cell Phone Searches, 69 VAND. L. REV. 585, 590 (2016)

(“In an alarming number of post-Riley cases, search warrants authorized police with

extremely limited suspicion of criminal activity to rummage through reams of unrelated

private data”). A decision of this Court is needed to protect Fourth Amendment privacy

concerns and provide adequate guidance to law enforcement.

A.

After Riley v. California, the search and seizure of cell phones

necessitates heightened sensitivity to the Fourth Amendment’s

particularity requirement.

1.

The Riley opinion recognized that cell phone searches must be

meaningfully constrained to protect individual privacy.

In Riley, this Court unanimously held that warrantless searches of cell phones

seized incident to arrest violate the Fourth Amendment and that “officers must generally

secure a warrant before conducting such a search.” 573 U.S. at 386. This Court reasoned

that cell phones require heightened privacy protection because they “carry a cache of

sensitive personal information” and, “as a category, implicate privacy concerns far

beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Id. at 393,

395. In 2014, when the opinion was written, the Court found that cell phones function for

users as “cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries,

albums, televisions, maps, [and] newspapers”—and “also happen to have the capacity to

be used as a telephone.” Id. at 393. As such, the search of a cell phone may give the

8

government a “broad array of information never found in a home in any form—unless the

cell phone is.” Id. at 396-97. In searching a cell phone, the Court reasoned, “[t]he sum of

an individual’s private life can be reconstructed” because “the data on the phone can date

back to the purchase of the phone, or even earlier.” Id. at 393-94.

These considerations, among others, led this Court to hold in Riley that requiring a

warrant before officers may search a cell phone incident to arrest was necessary as a

“meaningful constraint” on the power of law enforcement officers to intrude on the

“privacies of life” for many Americans. Id. at 399, 403 (internal quotation marks and

citation omitted).

The concerns that drove the outcome in Riley have proven well founded in the

decade since that ruling, as smart phones are even more ubiquitous today and are even

further integrated into an average person’s everyday life. At the time Riley was decided,

90% of American adults owned a cell phone and “the current top selling smartphone

ha[d] a standard capacity of 16 gigabytes (and [was] available with up to 64 gigabytes).”

Id. at 394. Today, 98% of American adults own a cell phone and the current top selling

smartphone has a standard capacity of 256 gigabytes and is available with up to 2

terrabytes. 1 Indeed, as this Court predicted, “the gulf between physical practicability and

digital capacity . . . [has] continue[d] to widen[.]” Id. at 394.

“The vast majority of Americans – 98% – now own a cellphone of some kind.”

Mobile Fact Sheet, PEW RESEARCH CTR. (Nov. 20, 2025),

https://www.pewresearch.org/internet/fact-sheet/mobile/. The iPhone 17 is currently the

1

9

2.

A warrant must set out the scope of an authorized search with

particularity.

The Fourth Amendment requires that “no warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” U.S. CONST. AMEND. IV (emphasis

added). These restrictions are “the founding generation’s response to the reviled ‘general

warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to

rummage through homes in an unrestrained search for evidence of criminal activity.”

Riley, 573 U.S. at 403. The manifest purpose of the Fourth Amendment’s particularity

requirement is to combat the Framers’ chief evil: general searches. Maryland v. Garrison,

480 U.S. 79, 84 (1987). A general search “le[aves] to the discretion of the executing

officials the decision as to which persons should be arrested and which places should be

searched . . . [and] provide[s] no judicial check on the determination of the executing

officials that the evidence available justified an intrusion into any particular home.”

Steagald v. United States, 451 U.S. 204, 220 (1981).

“The requirement that warrants shall particularly describe the things to be seized

makes general searches under them impossible and prevents the seizure of one thing

under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196 (1927)).

The particularity requirement also “assures the individual whose property is searched or

best-selling cell phone model. Top 5 Model Share in USA, Counterpoint (Sept. 2025),

https://counterpointresearch.com/en/insights/top-5-smartphone-model-share-8-countries.

10

seized of the lawful authority of the executing officer, his need to search, and the limits of

his power to search” and it “greatly reduces the perception of unlawful or intrusive police

conduct.” Groh v. Ramirez, 540 U.S. 551, 561 (2004); Illinois v. Gates, 462 U.S. 213,

236 (1983)). To serve those ends, the particularity requirement leaves nothing “to the

discretion of the officer executing the warrant.” Marron, 275 U.S. at 196.

A search must be confined to the terms as particularly described in the warrant;

even during a search pursuant to an otherwise valid warrant, only the specifically

enumerated items may be seized. Stanford v. State of Texas, 379 U.S. 476 (1964). A

search is unreasonable to the extent it exceeds the scope of the warrant. Horton v.

California, 496 U.S. 128, 140 (1990). A warrant’s scope is determined by the language of

the warrant. United States v. Sedaghaty, 728 F.3d 885, 913 (9th Cir. 2013) (citing United

States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982)).

The particularity requirement is of even greater importance in the context of

computers and smartphones than in the physical world, given the ability of smartphones

to store “millions of pages of text, thousands of pictures, or hundreds of videos.” Riley,

573 U.S. at 394.

3.

Ms. Smith’s cell phone was outside the scope of a warrant which

referenced only computers and not cell phones.

The Ninth Circuit wrongly concluded that the text of the warrant included cell

phones because cell phones are “electronic equipment that can be used to create or

transmit threats.” App. A at 3. But the language of the warrant and affidavit never

11

particularly described cell phones; rather, it described traditional computer-related

equipment and computer accessories potentially associated with preparing the physical,

word-processed letters described in the affidavit, not cell phones. See Center Art

Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 750 (9th Cir. 1989), superseded by

statute on other grounds as stated in J.B. Manning Corp. v. United States, 86 F.3d 926,

927 (9th Cir. 1996) (explaining that an attached affidavit limits officers’ discretion and

finding that, where the affidavit alleged that an art gallery was selling forged Dalí

artwork, the warrant should have limited the search “to items pertaining to the sale of

Dalí artwork”).

In describing why the investigators believed that relevant evidence would be

found on Ms. Smith’s computer, the affidavit specifically referenced the likely use of a

word processing program to generate those letters. App. D at 35-37. Further, the warrant

affidavit contained a detailed discussion of the suspected source of the letters and their

corresponding envelopes, stating that they appeared to have been computer generated:

“printed on plain white paper and the words appear to have been generated by using a

word processor and conventional electronic printer.” App. D at 29, 31, 32, 33. The

warrant also explained that “computers and computer programs, specifically word

processing programs” were the suspected source of those letters, because computers “are

used to generate letters and threatening communications contained in the letters, such as

those described” in the warrant. App. D at 33-34. The affidavit described Ms. Smith’s

12

unwillingness to consent to a search of her laptop and explicitly stated that the warrant’s

stated aim was to search “that computer.” App. D at 26.

Similarly, the warrant affidavit explained that investigators sought to search

electronic data storage devices specifically because of their connection with computers

and the likelihood that such devices would be used to store communications “generated

on computer programs.” App. D at 34. There was no reference to the type of data storage

offered by cell phones. In fact, the warrant specifically narrowed the types of electronic

storage devices sought to those “used in connection with computers,” and gave as

examples the types of storage devices commonly used with computers but not with cell

phones: “internal or external hard drives, removable hard drives, removable storage

devices (e.g. thumb or flash drives), compact discs or other optical storage devices, and

other memory storage devices[.]” App. D at 36. The affidavit contained no discussion of

cell phones, how a cell phone would be used in the search warrant’s target offense,

mailing threatening letters, or why the officers would believe that evidence would be

found on Ms. Smith’s cell phone.

The fact that officers later sought to supplement the warrant to add cell phones to

the list of items to be seized also supports the conclusion that cell phones were not within

the scope of the original warrant. Unlike the original warrant, the supplemental warrant

affidavit specifically discussed cell phones and explained why there was probable cause

to believe that evidence of the suspected firearm offense would be found in GPS data

contained on Ms. Smith’s iPhone. App. D at 76. No similar information in the original

13

affidavit described why there was probable cause to believe that a cell phone would

contain evidence related to the threatening letters or earlier Facebook messages. And, if

cell phones were already included in the original warrant, an application to add cell

phones would not have been needed.

Disregarding the supplemental warrant application, the panel nonetheless

concluded that the original warrant encompassed cell phones because it reached “all other

electronic equipment used in connection with creating or transmitting threats or

threatening communications.” App. A at 3. However, the list of items following that

phrase only included the types of “peripherals” and “electronic equipment” that could be

used with a computer to create the physical, printed letters and addresses extensively

described in the affidavit—in other words, computer accessories. The provision reads in

full:

Computers, peripherals, and all other electronic equipment used in

connection with creating or transmitting threats or threatening

communications, including but not limited to: computers, scanners, color

printers, digital cameras, copy machines, internet access devices, and

graphic design software.

App. D at 36, 46. Cell phones are not computer accessories, and nothing in the affidavit

suggested that they were commonly used to create physical, printed letters.

The panel reasoned that several of the listed items, like scanners, digital cameras,

and internet access devices, are not typically “used with computers for word processing

and printing.” App. A at 3. But the panel did not dispute that the listed devices are all

typically used with a computer and that cell phones are not. Instead, the panel described

14

Ms. Smith’s interpretation of the warrant as “hypertechnical.” App. A at 4 (citing United

States v. Ventresca, 380 U.S. 102, 109 (1965). The issue in Ventresca was not search

warrant interpretation, which requires particularity; it was a magistrate’s determination of

probable cause. Id. at 103-12. In any event, limiting the warrant to the types of devices

expressly described in it—and excluding cell phones that are not mentioned—does not

require a “hypertechnical” reading. Given that officers believed the threatening letters

were created on a traditional computer, it made sense for the search to encompass

peripherals and accessories typically used with a computer. No similar reasoning explains

why the officers wanted to seize Ms. Smith’s cell phone. It does not make sense to

interpret a warrant as encompassing cell phones when it makes no mention of cell phones

nor explains how a cell phone could have been used in the offense.

The panel also pointed out that the warrant affidavit described “threats that were

sent on Facebook,” 2 the last of which was sent over 18 months before officers applied for

a search warrant, raising potential issues of staleness. App. A at 4. But the warrant

affidavit never discussed the potential source of those messages, or why evidence relating

to any such transmissions would be on Ms. Smith’s iPhone. This contrasts with its

express identification of “computers and computer programs” as the likely source of the

mailed letters and the detailed explanation of why evidence relating to the threatening

letters would likely remain on the computer and its accessories. App. D at 33. In addition,

Only one of the three Facebook messages was arguably threatening; Ms. Smith

was never charged with any crime related to those messages.

2

15

the affidavit offered no suggestion that Ms. Smith owned a cell phone or had used a cell

phone in relation to those messages, again contrasting with the warrant’s specific

reference to her laptop computer as the suspected source of the mailed letters.

The total omission of cell phones from the warrant affidavit contrasts with the

reference to Ms. Smith’s personal computer, which the affiant had seen and stated was

the prime target of his proposed search warrant. App. D at 26. While it is true that the

computer sought did not have to be that computer, it is not true that the warrant

encompassed a totally different type of device never mentioned, i.e., Ms. Smith’s iPhone.

That is especially true where, as here, officers could easily have been more particular in

describing cell phones and their potential role in the offense but chose to discuss only

traditional computers. If cell phones were potential sources of criminal evidence for the

target crimes, then there is no reason why officers could not have stated as much in the

affidavit. Requiring that an affidavit define the category of devices that could have been

used or may contain evidence is not the same thing as requiring the officers to identify

the precise device that was used.

Where, as here, the warrant and its affidavit were devoid even of any generalized

reference to cell phones, the general references to “computers” and “electronic data

storage devices” did not particularly describe Ms. Smith’s iPhone, or any cell phone.

16

B.

This court needs to halt the erosion of Fourth Amendment privacy

interests by requiring that a warrant to seize and search cell phones

identify the type of device with particularity.

This Court should reverse the Ninth Circuit and prevent other courts from

disregarding the privacy protections articulated in Riley. Riley answered the question of

whether a warrant is required to search a cell phone. The next question, of equal

importance, is: Must cell phones be described with particularity? Indeed, it has already

been predicted that, given the “Court’s lengthy discussion [in Riley] about the amount of

personal information accessible on a modern mobile device . . . a search warrant’s

particularity may be the next subject for scrutiny.” Andrew D. Huynh, What Comes After

“Get a Warrant”: Balancing Particularity and Practicality in Mobile Device Search

Warrants Post-Riley, 101 CORNELL L. REV. 187, 190 (2015).

Because the amount of private digital data contained within a cell phone is

voluminous and sensitive, vigilance in enforcing the particularity requirement is essential

to the protection of the interests inherent in virtually every modern cell phone and to the

achievement of the “meaningful constraints” contemplated in Riley. 573 U.S. at 399.

Courts are “obligated—as ‘subtler and more far-reaching means of invading privacy have

become available to the Government’—to ensure that the ‘progress of science’ does not

erode Fourth Amendment protections.” Carpenter, 585 U.S. at 320 (quoting Olmstead v.

United States, 277 U.S. 438, 473-74 (1928) (Brandeis, J., dissenting)).

This case is an example of current warrant practice falling short. According to the

Ninth Circuit, a general reference to electronic data justified seizing Ms. Smith’s cell

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phone even in a case that involved physical, printed letters sent through the U.S. mail,

because “[c]ell phones are electronic equipment that can be used to create or transmit

threats.” App. A at 3. If courts are permitted to follow the Ninth Circuit’s reasoning here,

there is “a serious risk that every warrant for electronic information will become, in

effect, a general warrant, rendering the Fourth Amendment irrelevant”; law enforcement

will be able to seize any device that is capable of transmitting electronic communications

(e.g., smart watches, smart televisions). United States v. Comprehensive Drug Testing,

Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en banc) (per curiam), overruled in part on

other grounds as recognized by Demaree v. Pederson, 887 F.3d 870, 876 (9th Cir. 2018)

(per curiam).

Ensuring that cell phones are particularly described in a warrant is not difficult.

Just as a warrant must specify when it seeks to search an individual’s computer and

establish probable cause to believe that a computer retains evidence of the crime, the

language of the warrant must also specify when a cell phone is among the items to be

seized and connect a cell phone to evidence of the targeted charges. Given the privacy

interests articulated in Riley, law enforcement officers and issuing judges should exercise

great care in ensuring that a warrant is not worded so broadly that it is left to the

discretion of executing officers to determine whether a cell phone is the type of electronic

device subject to search and seizure.

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Conclusion

For the reasons stated, the Court should grant the petition for a writ of certiorari

and reverse the decision of the Ninth Circuit Court of Appeals.

Dated this 9th day of December 2025.

tw

vom

Justine Bonner

torney for Petitioner