Judge modifies warrant in UCSC protester phone seizure case

A Santa Cruz County judge on Wednesday significantly narrowed the scope of a search warrant that had given UC Santa Cruz police sweeping access to a student protester’s cellphone data going back to elementary school. But while Superior Court judge Erika Ziegenhorn limited the warrant to just five months of data and barred investigators from accessing any attorney communications, she declined to order investigators to return the device.

Third-year student Laaila Irshad is at the center of the case. UCSC police seized her phone on Oct. 1 as the campus was engulfed in protests over Israel’s war in Gaza. They provided her with documents that said the seizure was related to an investigation into alleged vandalism, but no further information. The warrant was far-reaching, granting authorities access to all data on Irshad’s phone, dating back to when she was in fifth grade. 

During a Wednesday hearing at the Santa Cruz County courthouse in Watsonville, Ziegenhorn modified the date range of the search warrant, narrowing it to the time period from April 30, 2024, through Oct. 1, 2024. She did not order the return of the student’s phone because charges still could be filed against Irshad. The statute of limitations is one year for misdemeanor crimes and three years for felony crimes.

As of Wednesday, Irshad has not been charged with any vandalism-related offense, and no charges have been filed against her by the Santa Cruz County District Attorney’s Office.

Irshad’s attorneys filed a motion requesting that the court require UCSC police return her phone and deem the warrant illegal because it was overbroad and retaliatory. Officers seized the phone only weeks after Irshad and two others filed a still-pending lawsuit accusing the university of illegally banning protesters from campus without due process following their arrest last May at the Gaza solidarity encampment. Irshad, professor Christine Hong and student Hannah (Elio) Ellutzi are suing the university after they were arrested and cited with failure to disperse, along with 124 others at the encampment located at the base of campus last May 30 and 31.

In front of about 50 UCSC students and community members at the Watsonville courthouse, Irshad’s attorney, Thomas C. Seabaugh, argued that the warrant violated the California Electronic Communication Privacy Act (CalECPA). Everything from intimate personal secrets and political beliefs to medical records and private communications with attorneys are stored on our phones these days, he said, which means cellphone searches pose “significant privacy concerns” in the modern era.

Seabaugh said the warrant does not provide a distinct enough time period that it covers. He added that it was suspicious that the university obtained the warrant only after Irshad filed a lawsuit against the school.

He also pointed to a photo of Irshad that police used in the warrant itself that was from a news conference announcing the lawsuit, which he argued proves that the warrant was created after the lawsuit was filed in court. Seabaugh also argued that Irshad should get her phone back: “They’ve had it for six months. It’s not contraband, and there’s no allegation that it was used in the commission of a crime.”

Victoria Degtyareva, the attorney representing the university, said the assertion that the warrant is retaliatory is purely speculative, and that investigators are not seeking any evidence from the phone that would be considered attorney-client conversations. She added that the timing of the warrant was unrelated to Irshad’s lawsuit and was solely due to police needing to obtain sufficient evidence for probable cause to search her phone, which can be a lengthy process. Degtyareva argued that officers chose that photograph of Irshad because they wanted to find the most recent picture possible, and a Google search easily brings up that photo.

Degtyareva also pushed back on the argument that the warrant is overbroad, saying that California law requires a strict time frame only for data and information that is to be seized, rather than simply searched. She added that the case does not seek evidence that implicates the First Amendment, as investigators are searching only for evidence related to the vandalism allegation, which is not protected by the First Amendment.

She argued that the judge should not return Irshad’s phone, saying it’s “standard practice that law enforcement retain all evidence in a case, including digital devices, until the resolution.”

However, Seabaugh argued that such a search can have a “chilling effect” on First Amendment rights because it can affect how people express their views, particularly on a controversial topic. He added that while vandalism is not protected by the First Amendment, protest activity is, and the allegation is that vandalism occurred in the midst of protest activity.

“There’s no plausible scenario where an allegation of vandalism in a political protest gives rise to a search this broad,” he said.

Following the hearing, students and supporters jeered the university’s attorneys and applauded those representing Irshad. Seabaugh addressed the crowd and said while they did not get everything they wanted, it was still an important victory.

“What’s important here is that the university’s overreach was exposed,” he said. “One lawsuit won’t cure the reign of terror that’s happening on campuses, but I think it’s an important win.”

Seabaugh told Lookout that the case isn’t over yet, since the district attorney’s office has three years to file felony charges, unless it formally states that it will not pursue them.

The university has yet to indicate whether it will pursue misdemeanor or felony charges.

“Which they shouldn’t, and everybody should tell the university not to,” he said. “There’s an expression, ‘When you find yourself in a hole, stop digging.’ The university should stop digging.”

Have something to say? Lookout welcomes letters to the editor, within our policies, from readers. Guidelines here.