Suppression Follows Weak Affidavits

United States v. Morton, 2021 WL 37491 (5th Cir. 2021)

When Brian Morton was stopped for speeding, officers smelled marijuana. Morton consented to a search of his van. Officers found three cell phones, ecstasy pills, a small bag of marijuana and a glass pipe. They also found children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear. Morton was arrested for drug possession.

An officer prepared affidavits for warrants to search the cell phones. The affidavits cited the officer’s experience that drug suspects’ call logs often show calls “arranging for the illicit receipt and delivery of controlled substances,” stored numbers that identify “suppliers of illicit narcotics” and text messages that “may concern conversations” about drugs. The affidavits also stated that “criminals often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs.”

During the initial search of the cell phones, officers found sexually explicit images of children. The officers then sought and received another set of warrants to further search the phones for child pornography, ultimately finding 19,270 images of sexually exploited minors. Morton challenged the sufficiency of probable cause supporting the warrants. The trial court rejected his challenge and Morton appealed.

The court of appeals held “that the officers’ affidavits do not provide probable cause to search the photographs stored on the defendant’s cellphones; and further, [the court also held] that the good faith exception does not apply because the officers’ reliance on the defective warrants was objectively unreasonable.” An affidavit in support of a search warrant must raise a “fair probability” or a “substantial chance” that criminal evidence will be found in the place to be searched (Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009)). So, what was missing in this case?

The only information that might be found in photographs on the phones related narrowly to drug trafficking. Thus, the court found the affidavits to be fatally lacking probable cause to search for photographs.

The court held the affidavits successfully established probable cause to search Morton’s phone contacts, call logs and text messages for evidence of drug possession. The officer described his experience showing that “criminals often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs.” However, Morton was arrested for possession of a relatively small quantity of drugs, just user quantity, and there was no evidence he was engaged in drug trafficking. The only information that might be found in photographs on the phones related narrowly to drug trafficking. Thus, the court found the affidavits to be fatally lacking probable cause to search for photographs.

The appellate court cited the Supreme Court’s observation that mobile phones “collect in one place many distinct types of information” (Riley v. California, 573 U.S. 373 (2014)). The Supreme Court noted that cellphones are in fact minicomputers that can also serve as “cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Separate probable cause is required to search each category of information found on the cellphones, whether digital text or digital images.

Could the affidavits have been written in such a way as to establish probable cause to search for digital images? Perhaps, though we can only speculate. The officers could have (and maybe they did, but the court record does not so state) asked Morton for consent to search the phones. He’d given consent to search the van. Some drug suspects foolishly incriminate themselves by posting photographs of drug use. Perhaps that kind of connection with Morton’s cell phones could have been explored. Hindsight is 20/20, and due to a limited court record, we don’t know what else the officers tried in this case. The decision reminds officers that cell phone searches, even with a search warrant, require careful attention to specify probable cause for each type of information stored on the phone.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

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 three 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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