Court Suppresses Phone Search, Telling Cops A Warrant With No Probable Cause Is Like Having No Warrant At All
Not every crime is linked to a cell phone, no matter what cops may think. True, cell phones are omnibuses of information, containing overflowing email inboxes, social media posts, personal contacts, photographs, text messages, vast amounts of location history, etc., but not every crime generates evidence on a phone, not even one carried by a suspected criminal.
To search a phone, law enforcement must (in theory, anyway…) be able to show a connection between the phone and the crime. And they must obtain a warrant, thanks to the Supreme Court’s Riley decision. The warrant should (again, in theory…) contain something more than copy-pasted boilerplate stating that criminals often carry phones and ipso facto probably have more evidence of their crimes on their phones.
But pushing boilerplate past a judge whose eyes glaze over the moment the boilerplate kicks in is at least as easily done as said. Most local judges — unless viewing something particularly novel and/or terribly written — are willing to give warrant affidavits a pass as long as they contain enough words about training, expertise, and unchallenged assumptions about criminal acts and cell phone adjacency.
In this case, the shitty affidavit survived a review by a local judge but isn’t able to survive a challenge by the defendant, Michael Anthony Williams. Williams was one of several men arrested at a Super 8 motel. Police, following a tip from a motel employee, converged on the eight suspects and immediately noted some weapons in a parked car belonging to one of them. Tucson PD officers made a telephonic warrant request to not only search one motel room but also all the men arrested and any cell phones in their possession. (h/t FourthAmendment.com and CaseText [for the copy of the opinion])
But the warrant request was incredibly weak. It failed to do the things people expect warrants to do, like justify all of the searching the Tucson cops wanted to do. The court’s opinion [PDF] features this very dry footnote near the beginning that gives a good picture of what’s to come later in the decision.
As will become evident in text infra, the Court is quite critical of the government’s various arguments. However, to be fair, government counsel did a heroic job of trying to save the state and federal search warrants given the hand she was dealt. It just wasn’t “in the cards.” But the District Judge will be a new dealer.
Officers involved in the arrest and subsequent searches were asked if they thought the affidavit requesting a warrant to search Williams’ phone had enough probable cause to be legitimate. Their answers were… less than satisfactory.
Detective Padilla believes that the affidavit establishes probable cause. Id. Counsel then probed into what leads Detective Padilla to that conclusion. Detective Padilla agreed that the affidavit mentions Williams by name and that he has a prior felony and therefore cannot possess a firearm. Id. But he also agreed that the affidavit does not say that Williams possessed a weapon, that he was around a weapon, that he was near the Tahoe that contained weapons, or how close he was to guns found in the bushes. Detective Padilla also agreed that the affidavit only mentions that Williams is a prohibited possessor and “present with the others.”
So, being near a gun (while being a convicted felon who can’t actually possess a gun) was somehow enough probable cause to search a phone carried by a person who wasn’t actually carrying a (forbidden) gun.
Probable cause or not, Detective Padilla stated (repeatedly) the PD would have held onto Williams’ phone even if the warrant hadn’t been granted (remember: seizures alone require warrants). According to Padilla, the Tucson PD would have held the phone as “property” or “evidence,” changing the designation as needed to keep it in the PD’s possession until it was given the go-ahead to search it. So there’s that on top of anything else. If the warrant had been rejected, the PD would have held the phone until it could get a warrant approved, never mind lacking the probable cause to continue holding it after Williams’ release from detention.
The “nexus” between the seized phone and the guns Williams wasn’t witnessed “possessing” didn’t appear to matter to Detective Padilla. As he told the trial court, his “training and experience” was all he felt he needed to connect the phone to the alleged crime, which was (apparently) being a felon near weapons.
The court minces few words letting the government know what it thinks about its attempt to turn speculative fiction into probable cause.
The Court finds that the search warrant affidavit comes nowhere near to establishing probable cause for the search of the cell phone. Simply put, this is a no-brainer. In fact, the government’s conclusory argument noted above demonstrates the futility of their position in trying to save the search warrant for the cell phone. As the defense points out, there is no attempt to link the crime to the phone, let alone an effort to detail why the phone is likely to contain evidence of a crime. At its essence, the affidavit says that the defendant was suspected of committing a crime (and it doesn’t do a great job of that) and that he had a cell phone when arrested. If those facts amounted to probable cause, there would be no limit to law enforcement’s ability to obtain a search warrant for every arrestee’s phone. The alleged crime, whether it be a serious felony or a misdemeanor, wouldn’t matter. All that would matter is that the person had a phone when arrested.
Good faith? LOL. Forget about it.
The good faith exception does not apply to Detective Padilla’s affidavit. It is not even a close call. In fact, if the good faith exception applied to the case at hand, a defendant could never challenge a probable cause determination. This is the classic case of where an affidavit lacks any indicia of probable cause. As discussed earlier, the search warrant affidavit says only that the defendant is a prohibited possessor, he was with seven other men in the vicinity (although the “vicinity” was never specified) of where firearms were found, and he had a phone. The Court finds that no reasonable officer could have relied in good faith on the search warrant when the only evidence detailed in the affidavit was that the defendant had a cell phone, just like virtually every adult in the United States (and many kids now as well), when he was arrested on the suspicion that he was a prohibited possessor of firearms.
The beating continues, making it clear the government’s arguments are as terrible as its warrant.
Finally, the Court notes that Detective Padilla testified that they obtained a search warrant for the phone to further the investigation. That makes perfect sense. But that will almost always be the motivation for law enforcement officers when they arrest someone with a cell phone, given the vast amount of information that can be stored on these minicomputers. In their perfect world, law enforcement officers would love to always be armed with a search warrant that allows them to rummage through an arrestee’s phone to discover inculpatory evidence or evidence that would assist or further their investigation. However, the means used to obtain that information – i.e., a search warrant based on probable cause – must be lawful to justify the legitimate ends of preventing or investigating criminal activity. Searching a phone to further an investigation, even when coupled with the fact that the defendant was arrested and had a phone, does not amount to an indicia of probable cause.
On top of everything else, the PD held Williams’ phone for a year, despite it being unable to find anything interesting until the ATF obtained its own warrant (a year later) and managed to extract more data and information, producing the evidence that is now suppressed. The PD had no probable cause to effect the seizure, much less follow through with the (mostly failed) search. It certainly did not have the probable cause to deprive someone of their phone for a year after having recovered nothing useful on its first pass. The evidence is suppressed and, as can clearly be seen by what’s quoted above, the magistrate reviewing this case is entirely unimpressed with the government and its obvious Fourth Amendment violations.
Having a warrant is a step in the right direction, but this wasn’t a legitimate warrant. It was just a bunch of bland assertions backed by speculation and delivered telephonically to a judge who apparently couldn’t be bothered to actually search the boilerplate for probable cause. That isn’t enough. Fortunately, one court is having none of it.