United States v. McCall, 2023 WL 7102161 (11th Cir. 2023)
Kevin McCall was playing poker late at night with four other men. As the poker game progressed, McCall began losing large. Frustrated with the large losses, McCall threatened “to do something about it.” The other players saw McCall “frantically using his cell phone to make calls/texts to unknown persons.” McCall received a phone call and stepped outside, telling the others “he needed to take care of something.”
Soon after McCall stepped outside, there was a knock at the door. One of the players saw McCall standing outside and opened the door for him. Instead of McCall at the door, there were two masked men with guns. The men charged inside and ordered everyone to the ground. They took the men’s cell phones and cash, shot two of the players and left.
Three days later, McCall was arrested for attempted felony murder and armed robbery. A detective obtained a search warrant for McCall’s iPhone. In the affidavit, the detective wrote that the sworn statements of all victims involved provided “probable cause to believe that McCall’s listed cell phone was used to contact the unidentified (masked) armed black male suspects and facilitate” the robbery. During the warrant execution, the detective discovered the iPhone required a passcode. The detective was able to identify the iCloud account associated with the phone and the date and time of the last data backup.
Based on that information, he applied for a warrant to search McCall’s iCloud account. In the supporting affidavit, the detective wrote that he “knows from law enforcement training and experience that criminal activity is often planned prior to the act and the aforementioned data from the iCloud account may reveal relevant witnesses and/or coconspirators to the offenses listed above, as well as photos of items used in the incident (clothing, guns, cars).” A judge issued the warrant and ordered a two-step process for conducting the search. First, the warrant ordered Apple to “provide the entirety of the account records” to the detective. Second, the warrant directed the detective to sort through the data for evidence of the specified crimes. The warrant authorized a search for the phone’s registration information, its iCloud data, Find My iPhone data, communications records, iCloud backup history, FaceTime communication logs and iTunes account information, with no time limitation.
During the forensics examination of the phone, an investigator found photographs and videos of McCall, a felon, holding a 9mm semi-automatic pistol. The photographs dated back to the month before the robbery. Eventually, McCall was charged with being a felon in possession of a firearm. McCall moved to suppress the evidence seized from his iCloud account. He claimed the warrant was overbroad and asserted there was a tenuous link of the iCloud account to the crime.
“Like judges, law enforcement officers operating in good faith may struggle to apply existing standards to new circumstances.”
The trial court denied the motion to suppress. The court agreed the iCloud warrant was invalid because, although it was supported by probable cause, it lacked sufficient particularity (a point conceded by the prosecution). Notwithstanding, the court explained, “This is clearly an evolving area of the law,” and applied the good faith exception to the exclusionary rule, allowing admission of the iCloud evidence.
Even when an appellate court rules that the issuing magistrate did not have a substantial basis for finding probable cause or that the affidavit lacked particularity, and that the warrant should be invalidated as a result, 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)). In United States v. Leon, the Supreme Court stated the exclusionary rule applies in only “unusual cases.” The exclusionary rule is designed to deter future violations of the Fourth Amendment. It is thus limited to situations in which the threat of exclusion can deter future violations (Herring v. United States, 555 U.S. 135 (2009)). Because good-faith mistakes cannot be deterred, the exclusionary rule applies only if “the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” (Davis v. United States, 564 U.S. 229 (2011)).
The appellate court stated that, while Fourth Amendment rules are generally settled, application of the rules to developing areas of technology is not: “Like judges, law enforcement officers operating in good faith may struggle to apply existing standards to new circumstances. That is where the exclusionary rule’s good faith exception comes in.” The court held that reasonable officers could have believed the warrant in this case to be valid.
The court prescribed that future warrants for cloud accounts contain a time-based limitation to protect privacy interests. One judge’s concurring opinion also recommended the warrant describe the categories of evidence sought, “for instance, photographs, communications, and records (if applicable),” as well as “what subject matter those categories of evidence must pertain to.” Officers drafting warrants for cloud storage should take note of these possible future restrictions. Even so, it was not unreasonable in this case for the detective to rely on the warrant in good faith, and the evidence of McCall holding a gun was properly admitted.