Cyber-warrant searches and the admissibility of seized smartphone data evidence at trial

• Citation: (2023) 36 SACJ 228
• DOI: https://doi.org/10.47348/SACJ/v36/i2a3
• Published date: 14 November 2023
• Pages: 228-249
• Author: Theophilopoulos, C.
• Date: 14 November 2023

Cyber-warrant searches and the

admissibility of seized smartphone

data evidence at trial

CONSTANTINE THEOPHILOPOULOS*

ABSTRACT

A validly issued cybe r-warrant is a prim ary investigating tool i n the

seizure of smar tphone data content and may be the only l awful method of

obtaining relevant dat a-le evidence about the cyb er-offence culpabilit y of

a co-perpetr ator, accomplice, or accessory. A cyber-warrant for the seizu re

and search of a portable hand held smartphone, or min icomputer, must be

drafted in a m anner that is procedur ally different from t he warrant for the

seizure of a desktop or laptop computer. This a rticle critically examines the

warrant procedures for accessi ng and searching relevant data  les stored

in a smartphone’s default storage mediu ms and downloaded applications.

These technical pro cedures are described in the Cybercr imes Act, indirectly

in the Electronic Com munications and Transact ions Act, the Crim inal

Procedure Act, and related Acts. T his procedural a nalysis is based on a

revised principle of smar tphone cyber-intell igibility, and the application of

the sub-principles of c yber-offence par ticularity a nd data-access speci city.

The substantive issue of c yber-privacy and the procedural issue of chai n-of-

data evidence custody is br iey examined.

1 Introduction

There is a considerable disconnect bet ween the traditional crim inal

procedures which dene a compelling order such as a state-issued

warrant, or subpoena duce s tecum, which allows for the search,

seizure, and admissibilit y at trial of physical articles, as opposed to

the same for incorporeal digital in formation stored in a data le on

a smartphone in the form of a digital d ata message. This procedural

disconnect has been previously and indi rectly addressed by academic

* BSc LLB (Wits) LL M LLD (SA); Associate Professor, Interim Di rector and supervising

attorney, Law Clinic, Un iversity of the Wit watersrand. ORCID: ht tps://orcid.

org/0000-0003-4336-1044.

https://doi.org/10.47348/SACJ/v36/i2a3

228

(2023) 36 SACJ 228

© Juta and Company (Pty) Ltd

authority,1 and the Law Commission Paper 99 on computer related

crime.2 This divide continues to exist despite the enactment of the

Cybercrimes Act,3 and, previously, the Electronic Communications and

Transactions Act.4 The procedural divide exists principally bec ause the

search warrant procedures in the above two Acts are an amended cut-

and-paste version of the traditional common law warr ant procedures

codied in the Criminal Procedure Act.5 These traditional com mon

law-based search procedures may not be a good t with modern

developments in smartphone technology.6 Goqwana v Minister of

Safety and Security NO,7 held that a warrant is a ‘substantive weapon

in the State’s armoury’ which embodies awesome procedural powers

as well as formidable constitutional and evidentiary consequences.

With these evidentiary consequences in mind, it may also be argued

that the warrant procedures of the Cybercrimes Act and Electronic

Communications and Transactions Act fail to legally accommodate

the technology built into modern smar tphones. In particular, these

two Acts fail to coherently dene the unique procedures necessary

for a new kind of technologically based ‘seizure’, ‘access’, ‘search’ and

the chain of evidence custody process needed in order to ‘preser ve’

a data le seized from a smartphone. In other words, the common

law principle of intelligibility, as set out in Minister of Safety and

Security v Van der Merwe,8 which denes how a physical article is to

1 JGJ Nortje and DC Myburg h ‘The search and s eizure of digita l evidence by

forensic investigators in S outh Africa’ (2019) 22 PER/PELJ DOI http://dx.doi.

org/10.17159/1727-3781/2019/v22i0a4886; C Theoph ilopoulos ‘The ad missibilit y of

data, data messa ges and electronic doc uments at tria l’ (2015) 3 TSAR 461 at 463;

GP Bouwer ‘Search and sei zure of electron ic evidence: Division of the t raditional

one-step process i nto a new two-step p rocess in a South A frican context ’ (2014)

27 SACJ 156-171; V Basdeo ‘The lega l challenge of search a nd seizure of elect ronic

evidence in South A frican cri minal procedu re: a comparative analysi s’ (2012) 25

SACJ 19 5-21 2.

2 South Afric an Law Commission Discu ssion Paper 99 (Project 108) ‘Computer Related

Crimes: Preli minary Pr oposals for Reform’ (2001).

3 Sections 29- 34 of the Cybercr imes Act 19 of 2020.

4 Sections 82- 83 of the Electronic Communication s and Transactions Ac t 25 of 2002.

5 Sections 20 -26 of the Crimi nal Procedure Act 51 of 1977.

6 Katz v United States 3 89 US 347 (1967) at 360-362, noting that the jud icial system

must continually s eek to interpret and eva luate the changing nat ure of the

constitutiona l right to privacy in the face of evolving technolog y.

7 2016 (1) SACR 384 (SCA) atparas [13], [30] per Will is JA, the issue of a search warr ant

must be tempered by the con stitutional ly enshrined r ights of a warrant re cipient

to personal dign ity, privacy, freedom and secur ity; Magajane v Chairpe rson, North

West Gambling Board 20 06 (2) SACR 447 (CC) atpara [74], stating that a se arch

warrant must li mit privacy intrusion a nd clearly inform the recipient of the w arrant’s

legality and sea rch limits.

8 Minister of Safety and Secu rity v Van der Merwe 2011 (2) SACR 301 (CC) atparas [39],

[55]-[56].

Cyber-warrant searches and the admissibility of

seized smartphone data evidence at trial 229

https://doi.org/10.47348/SACJ/v36/i2a3

© Juta and Company (Pty) Ltd