Probable Cause Did Not Extend to Search of Cell Phone Photographs
On appeal, the Court of Appeals for the Fifth Circuit noted that under U.S. Supreme Court precedent in Riley v. California, “probable cause is required to search each category of content.” The appellate court concluded that the first set of warrants established probable cause “to search the defendant’s contacts, call logs, and text messages for evidence of drug possession” because there was a “fair probability” that it would contain evidence of the defendant’s drug possession charges.
However, the Fifth Circuit determined that there was no probable cause to search the photographs for evidence of drug trafficking because the small quantity of drugs did not indicate that he was a drug dealer. It reasoned that the officers’ affidavits did not create a “fair probability” that “evidence of the crime of drug possession [would] be found in the photographs on the defendant’s cell phones,” and therefore, the government’s “good-faith exception” did not apply because the officers’ reliance on the defective warrants was objectively unreasonable. The appellate court likewise held that the magistrate judge lacked a “substantial basis” to find probable cause to search the photographs’ “file cabinet”.
Finally, the court concluded that the photographic evidence from the second set of warrants was inadmissible, explaining, “Because the officers’ search of the stored photographs pursuant to the first warrants was impermissible, obviously the use of that information—which was the evidence asserted to secure the second set of warrants—tainted the evidence obtained as a result of that second search, making it the unconstitutional ‘fruit of the poisonous tree.’”
The Affidavit Was “Underhanded”
“The decision strikes the right balance between protecting a defendant’s Fourth Amendment right and ensuring public safety because the affidavit was too overbroad, suggesting that the officers had probable cause to believe there was drug trafficking when the evidence they seized only indicated personal drug use,” observes Caroline Rule, New York, NY, chair of the Section’s Tax Crimes Subcommittee of the Criminal Litigation Committee. The affidavit was also “underhanded because their real interest was not even drug trafficking, but child porn,” Rule adds.
A cell phone has many components of data, and “searching a defendant’s mobile phone may be more intrusive than searching his home because a cell phone contains more data and information than a house would,” explains Warrington Parker, San Francisco, CA, cochair of the Section’s Criminal Litigation Committee. However, “the way the court describes a phone, such as having cabinets is the wrong way to describe it; the court should be specific and call it what it is,” Parker cautions. Parker explains that it is best practice to be specific when naming a component of a cell phone.
Section leaders say this problem could have been avoided with better affidavits. “In establishing probable cause,” Rule notes, “law enforcement officers should be exact and careful to distinguish their knowledge about what people do, such as indicators of drug possession versus indicators of drug-trafficking.” In addition, “law enforcement should only make a probable cause affidavit that states truthfully what they are looking for, not as an excuse for looking for something else they hope to get,” Rule concludes.