Can a Magistrate Issue a Search Warrant for a Computer or a Cell Phone?

I’ve had the same question several times recently: can a magistrate issue a search warrant for a computer or a cell phone? The answer is yes. This post explains why that’s so, and why there’s some confusion about the issue.

A magistrate may issue such a search warrant. Magistrates may issue search warrants for digital devices because they are given the authority to issue search warrants by G.S. 15A-243 and G.S. 7A-273, and because there is no limitation on that general grant of authority that would prevent them from issuing search warrants for computers, cell phones, and the like.

Why the confusion? There are at least two reasons that there is some uncertainty about this issue. The first is that, as a matter of practice or agency policy, some officers may prefer to seek search warrants for digital devices from judges. Because such warrants involve some special legal issues, this is a perfectly reasonable approach, but it isn’t legally required. (The legal issues surrounding search warrants for digital devices are discussed in detail in my book on digital evidence.)

The second source of confusion is the fact that magistrates can’t issue search warrants for cell phone records or other information covered by the federal Stored Communications Act, 18 U.S.C. § 2701 et seq. That federal statute generally prohibits telecommunications service providers from disclosing information about subscribers to law enforcement agencies. However, it creates several exceptions to that general rule, making different types of information available to law enforcement with different types of legal process. A search warrant is one type of legal process that can be used to obtain information under the Stored Communications Act, but the Act specifies that only a warrant issued by a “court of competent jurisdiction” is effective. And it defines “court of competent jurisdiction” in a way that excludes magistrates and maybe district court judges, which is why I have written before that it is safest to obtain search warrants directed at service providers from superior court judges.

But the point to remember is that the “court of competent jurisdiction” business only applies to search warrants pursuant to the Stored Communications Act directed at telecommunications service providers. It doesn’t apply to search warrants for digital devices themselves. Again, those may be issued by any judicial official authorized to issue search warrants generally.

I hope that this addresses this recurrent question. If it doesn’t, or if related questions remain, please let me know.

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