Court: It's Cool If The (Federal) Government Searches A Phone The (Local) Government Seized Illegally

from the Fifth-Circuit's-bizarre-vendetta-against-the-Constitution-continues dept

The Fifth Circuit Court of Appeals has decided it’s OK if a government agency searches a phone that should never have been seized in the first place… so long as it’s not the same government agency that illegally seized it. The illegality of the original seizure — which should have provoked some discussions of poisonous trees and their harmful fruit — is pretty much discarded in favor of the good faith exception.

The backstory is this: Charles Fulton Jr. was targeted by the Galveston (TX) Police Department — working in tandem with the FBI — for sex trafficking and prostitution of teens. He was ultimately found guilty on four sex trafficking charges, prompting this appeal of the district court’s refusal to toss out the evidence pulled from his seized phone.

Here’s how the seizure and very eventual search went down, taken from the court’s decision [PDF]. (Some emphasis added for reasons that will become apparent momentarily.)

In February 2015, Galveston police obtained a search warrant on the Avenue L house where the prostitution was based. The warrant, though, was due to a separate investigation into Fulton’s narcotics activities. Fulton’s cellphone was seized. Nine days later, police obtained a second warrant to examine its contents but were unable to bypass the phone’s security features. Around this same time, the FBI agent assisting with the Fulton sex-trafficking investigation learned that the Galveston police had the phone. The agent acquired it to determine if the FBI could access the phone’s data. Three weeks later, that agent obtained a federal warrant to search the phone. Still, it took a year before the data on the phone was accessed. The FBI discovered evidence that helped piece together Fulton’s involvement with the minor victims.

Recovered from the phone were text messages and photographs linking Fulton to the five minor victims he was trafficking. Fulton challenged the original seizure of the phone by the Galveston PD, hoping that a finding in his favor would eliminate the evidence pulled from the phone by the FBI.

The appeals court agrees with Fulton that the phone’s seizure was illegal. The warrant makes no mention of seizing phones or other electronics. And yet, that’s exactly what was seized. The government tried to claim Fulton’s phone was pretty much the equivalent of something else actually mentioned in the warrant.

This narcotics warrant did not mention cellphones. The alleged equivalent was a reference to “ledgers,” which is a “book . . . ordinarily employed for recording . . . transactions.” Ledger, OXFORD ENGLISH DICTIONARY (2d ed. 1989). The government argues that is enough, because this court has held that a cellphone that is “used as a mode of both spoken and written communication and containing text messages and call logs, served as the equivalent of records and documentation of sales or other drug activity.”

The government quoted precedent allowing the word “ledger” to stand in for “computers, disks, monitors” and other hardware that might contain the equivalent of a ledger. The court says all that would be fine if the government made any mention of ledger equivalents in its warrant. But it didn’t.

We do not see the same factors involved in the present case. There was nothing in the Galveston warrant suggesting that anything similar to computers or even electronics was to be seized. Moreover, the officer in this case was a veteran of the Galveston Police Department’s narcotics unit, and he indicated at the suppression hearing that he knew cellphones are used in the drug trade. Though a ledger can serve one of the myriad purposes of a cellphone, we do not extend the concept of “functional equivalency” to items so different, particularly one as specific, distinguishable, and anticipatable as a cellphone.

The government says the good faith exception should apply to the FBI’s search of the illegally-seized phone. This argument wasn’t even addressed by the lower court, which found other grounds to grant the government’s use of this evidence.

The appeals court does take a swing at this argument, though, but not to the benefit of Fulton and others similarly-situated in the circuit. Good faith it is.

We conclude that viewed objectively, an FBI agent who obtained a search warrant in these circumstances would not have had reason to believe the seizure and continued possession of the cellphone by the Galveston police were unlawful.

The (federal) government gets this win even though the (local) government has just been handed a loss. Despite the fact the two agencies worked “in tandem” on this investigation, the court still decides the reasonably ignorant FBI agent had no way of knowing the phone handed to them by their investigation partner had been seized illegally.

And I suppose that’s possibly true. The FBI assists in many investigations instigated by local agencies once there’s a possibility that federal charges may be the end result. But a decision like this just encourages everyone in a joint investigation to be as blissfully ignorant as possible to obtain the best possible chance at securing a good faith ruling. In this case, an agent was working directly with the Texas agency and found out the Galveston PD had seized a phone, but didn’t take a look at the PD’s paper trail before crafting an affidavit of their own. That’s the exact opposite of “good faith.” That’s bad faith — the least amount of knowledge and effort combining to allow for law enforcement rule-bending and access to pre-made judicial excuses molded from years of slack-cutting precedent.

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Comments on “Court: It's Cool If The (Federal) Government Searches A Phone The (Local) Government Seized Illegally”

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Mister Ken Premise says:

Liberals never miss a chance to push out the margins of crime.

Techdirt has particular fondness for sex-traffickers as here, still objects to FOSTA.

Next you’ll be claiming Epstein was framed and railroaded instead of got unique privilege of connected billionaire and escaped justice for ten years.

Frankly, I don’t care! Long ago stopped defending people who deliberately go to the margins. That’s their responsibility and problem.

Mister Ken Premise says:

Re: Liberals never miss a chance to push out the margins of crim

(Had to break, then right in.)

Now, the utility side: Will this decision ever affect me or you?

Me not unless framed, and it done well.

Anyone actually concerned needs to answer the question: are you, other persons, society, better off if this particular person gets jailed based on this chain of events, with the given facts clearly nailed down? Or are you going to act on supposed high principle and let a known sex-trafficker off, claiming that no punishment and free to commit further crimes is the least evil?

You can’t use the "better ten guilty go free" when there’s no actual question of innocence, only whether to allow evidence. That’s the sitch here.

But Techdirt / liberals always answer yes, let ’em off, because A) fear may be caught similarly, especially on drug charges, and B) hate Western civil society even while pretending to be its biggest defenders.

Anonymous Coward says:

Re: Re: Re:3 Re:

No, but if you are in jail, you are pretty much fucked out of any right you ever thought you had as a citizen of US. You can only try to make a call out to local bondsmen. Good luck with that. Judges will raise your bond so its so high you can’t bond out because they listen to every swinging dick’s conversation on those in cell phones.. And use it against you.

someoneinnorthms (profile) says:

Re: Re: Liberals never miss a chance to push out the margins of

You, sir, are daft.

When I was in the Marine Corps I found for your First Amendment rights to say daft things. I also fought for the other 27 amendments and for the body of the original constitution. I protected it against "all enemies, foreign ir domestic." You are a domestic enemy of the constitution if you believe it shouldn’t apply to someone YOU think is guilty. When I got out of the Corps I went to law school so I could continue in my fight as constitution-haters.

The Framers of our constitution put in place a mechanism for determining guilt, and if that mechanism is oiled and maintained and allowed to run smoothly, then liberty (or life) will only be taken away from the truly guilty. If that mechanism ejects someone because the process compels that ejection, then that process worked as the Framers intended it. If you don’t like what the Framers created, start a civil war. Or go somewhere else and found your own country with your own rules. I love my country, and I love my constitution. The difference between you and me is that I believe the constitution applies to everyone; you don’t. If we can start deciding who is worthy of constitutional protections and who isn’t, then we are well on our way to tyranny. Tyrants will get the benefit of seeing my fighting for the constitution in both methods for which I have been trained.

Good day, sir.

Anonymous Coward says:

Re: Re: Liberals never miss a chance to push out the margins of

if the law is seriously incapable of providing other evidence of this apparently extensive prostitution and trafficking (including that of minors!), then law enforcement needs to get off their asses and shoeleather harder.

they shouldn’t need the damn phone.

Anonymous Coward says:

Re: Liberals never miss a chance to push out the margins of crim

Frankly, I don’t care! Long ago stopped defending people who deliberately go to the margins.

I’d love a crack at the oracle you use to determine that everyone accused (of anything, apparently) is guilty (of "going to the margins"). And how’s that work for the folks who are black or yellow, Jewish or atheistic, female or formerly male? There are some things you don’t have so much choice in….

Eventually those margins are going to wear away, and you’ll find yourself on the margins yourself. Good luck with that.

Brad Jones says:

This doesn’t strike me as crazy. The purpose of the exclusionary rule is to force law enforcement to get search warrants.

As I read the opinion, the Galveston Police: (1) obtained a warrant prior to seizing the phone; (2) had a non-frivolous, though ultimately unsuccessful, argument their warrant authorized seizing the phone; and (3) obtained a separate warrant authorizing downloading the contents of the phone. It doesn’t strike me as unreasonable for the FBI to rely on Galveston’s mistaken belief that they had a valid warrant and were properly holding the phone – just as people generally rely on professional advice in a whole host of circumstances. I also think it’s notable that the FBI then obtained a separate federal warrant for the phone’s contents and had that warrant in hand before downloading anything from the phone.

I can certainly see an argument the case should have come out the other way. But a rule that federal law enforcement has some protection if they ensure local police obtain valid warrants and have a good faith belief that property turned over is covered by those warrants, may encourage more warrants – not fewer.

Anonymous Coward says:

Re: Re:

But a rule that federal law enforcement has some protection if they ensure local police obtain valid warrants and have a good faith belief that property turned over is covered by those warrants,

That leads to abuse of warrants, where an illegal seizure by one agency is turned into useful evidence by passing it on to another agency.

Anonymous Coward says:

Re: Re:

‘Perhaps we need to stop giving courts good faith exceptions… ‘

How do "We the People" stop the courts from doing what they like especially when it comes to them protecting da boys (and girls) who bring all this legal justice law breaking stuff to them from the field?

That would truly be amazing!

Bergman (profile) says:

An illegal seizure is a theft even if unprosecuted

So the local cops illegally seized property, which if the system weren’t corrupt as all hell would be prosecuted as armed robbery, but is without doubt at least theft of property.

So the cops now have illegal possession of that property, and turn it over to the feds. The feds received stolen property, and used it as they saw fit.

The Equal Protection Clause seems to apply here — a fence does not ask where the goods came from, he just buys them. He may suspect that they were stolen but the FBI as the agency in charge of investigating police abuses of power has that suspicion about police seizures too. For them to accept a seized phone without the necessary seizure paperwork is highly suspicious. If that’s acting in good faith, then the fence is too!

Result: The Equal Protection Clause has effectively, pending an appeal to the Supreme Court, abolished the laws against receiving stolen property in the Fifth Circuit.

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