In United States v. Karrer, the Third Circuit upheld a conviction for possession of child pornography after defendant's unsuccessful attempt to suppress evidence. 2012 U.S. App. LEXIS 1928 (3rd. Cir. 2012). The defendant, a 37-year-old man, had been engaging in "inappropriate communication" with teenage girls through the chat feature of Neopets, a children's website. The conversations discussed dating, and the defendant once told a girl he was in a nudist colony. A warrant was executed, seizing all computer devices and cell phones.
On appeal, the defendant argued the warrant was illegal or overbroad, and the court readily struck down both arguments. The warrant had authorized a search for child pornography, which the court found to be a mistake and unsupported by probable cause. However, the court still upheld a search of a cell phone's images folder.
Investigators were searching the phone for "unlawful communications with minors." The district court determined that "cell phones often archive communications as image files, which may be saved in photos folders" (actual language available at United States v. Karrer, 2010 WL 3824195, *3 (W.D. Pa. 2010)). The argument was that image files sent with an MMS could be saved to the photos folder, and investigators could determine if the image was received by MMS. The investigator opened the folder to look for communications, and child pornography was in plain view.
To me, it seems unlikely that an image in this folder could be proven to have been sent to the defendant by a minor (and they weren't, in fact) unless the MMS conversation was still saved on the phone, which also would have contained the image. The Third Circuit seems to think that actual conversations are archived as image files seemingly by default, which is not the case. If that is the understanding that courts take, this opens up a search of cell phone images when the phone is searched for any content, regardless of how narrowly-tailored the search is.
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