Conclusory Affidavit Fatal to Important Prosecution

United States v. Lewis, 2023 WL 5665548 (6th Cir. 2023)

Federal agents and a state investigator, acting on a tip from a foreign law enforcement agency, went to Edward Lewis’ residence and asked if they could speak to him about alleged crimes committed using the internet. Lewis let them enter and allegedly stated, “You’re not going to find anything.” Lewis signed a consent form for “a complete search of the premises, property or vehicle” and electronic devices. A look at Lewis’ laptop revealed file names indicative of child pornography. The agent found thumbnail images of children bathing naked on Lewis’ cell phone. Lewis claimed he knew it was unlawful to save child pornography, but did not know it was illegal just to look at child pornography. He then invoked his Miranda rights, but did not explicitly revoke his consent to search.

After consulting with a prosecutor, an investigator obtained a search warrant. A forensic search of Lewis’ laptop, cell phone and USB thumb drive revealed child pornography. Lewis was charged with producing, receiving and possessing child pornography. He conditionally pled guilty and was sentenced to 25 years.

Lewis challenged the trial court’s denial of his motion to suppress the evidence seized pursuant to the search warrants. He argued the affidavit supporting the search warrant was a “bare-bones affidavit.” The trial judge ruled Lewis had consented to the preview of his electronic devices, but not to the subsequent seizure or search of those devices. The judge agreed the search warrant failed to establish probable cause but ruled the officers had relied on the warrant in good faith.

Even when a reviewing court rules that the issuing magistrate did not have a substantial basis for finding probable cause and that the warrant should be invalidated, evidence may still be admissible under the “good faith” doctrine. When an officer objectively and reasonably relies on a search warrant, the evidence will be admitted despite the warrant’s failings (United States v. Leon, 468 U.S. 897 (1984)). Only if an officer’s reliance on the search warrant was “wholly unwarranted” will the evidence be suppressed. The good faith doctrine cannot apply when the affiant officer makes deliberately false statements or omissions or acts in reckless disregard of the truth. Moreover, a court cannot give the benefit of the good faith exception to the exclusionary rule:

  • Where the issuing court was misled by information in or omissions from the affidavit that the affiant knew was false or the affiant would have known was false but for his or her reckless disregard of the truth
  • Where the issuing court wholly abandoned judicial neutrality
  • Where the warrant is based on an affidavit so lacking in probable cause as to render a probable cause finding entirely unreasonable
  • Where the warrant so poorly describes the place to be searched or the things to be seized that executing officers are unable to rely on the descriptions

The court held the affidavit completely failed to even provide inferences that could lead to probable cause.

On appeal, the prosecution conceded the investigator’s affidavit failed to establish probable cause. The affidavit merely stated the investigator’s belief Lewis had viewed child pornography and that a search of Lewis’ laptop and cell phone had occurred: “That conclusory statement was too vague and insubstantial to establish probable cause to search Lewis’ electronic devices…Considering the complete lack of factual information included in the affidavit, we hold that no reasonable officer would rely on the affidavit to establish probable cause to believe that Lewis’s electronic devices would contain evidence of a child sexual-exploitation offense or any other crime.” The court held the affidavit completely failed to even provide inferences that could lead to probable cause. The mere fact a search of the electronic devices happened could not lead to the conclusion that evidence of a crime was found on the devices.

Lewis’ consent to search his electronic devices could not save the evidence found in the forensic search from suppression, as searches and seizures implicate different Fourth Amendment interests. The agents exceeded the scope of Lewis’ consent when they seized his electronic devices and forensically examined them because they did not request Lewis’ consent to seize the devices for forensic examination, and the consent form did not authorize a seizure. The appellate court set aside Lewis’ conviction but sent the case back to the trial court where the prosecution may try to salvage the case with the sparse evidence discovered in the initial search of Lewis’ laptop and cell phone at his home.

What might have avoided suppression? First, asking an experienced investigator to proofread the affidavit and scrutinize it for sufficiency. Second, and perhaps even more critical, submitting the affidavit to a prosecutor for review prior to seeking a judge’s authorization for a search warrant.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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