Failure To Obtain Warrants Results In Suppression Of Evidence In Two Child Porn Cases

Legal Issues

from the if-you-don't-take-the-time-to-do-it-right,-you-don't-get-a-chance-to-do dept

When we fight crime, what do we fight? To hear those guarding the borders and all of the towns in between, it’s generally a given that the Drug War is the top priority. Adding borders to the mix usually puts terrorism at a close second. The third? That’s usually child porn/child molestation. It tends to shoot up the Public Enemy charts whenever someone drags social media or the internet into the discussion.

Considering that pretty much everyone agrees that child pornography is a bad thing, you’d think those in charge of busting possessors of this illegal content would be more careful. In two separate cases, child porn evidence has been thrown out by judges because officers failed to obtain warrants — with both orders arriving within four days of each other.

The first comes from the Ninth Circuit Court of Appeals and deals with the illegal search of a border detainee’s cellphone [pdf link].

Chad Camou was arrested by border patrol agents and his vehicle was searched. Camou invoked his right to remain silent at this point. While the search was ongoing, his cellphone was called several times by a number known to agents to be one of his accomplices. An agent began warrantlessly searching his phone — originally for contact information but later took a look at Camou’s saved photos. That’s when he came across the child porn photos. He alerted his superiors to this fact. The search of the phone occurred 80 minutes after Camou’s arrest. The warrant to search his phone wasn’t obtained for another four days.

The court suppressed the evidence, stating several factors. First, it wasn’t a search “incident to arrest” because too much time had elapsed since Camou’s arrest and the agent’s search of the phone. The court also pointed out that the “exigent circumstances” exception could not be deployed in this situation because the scope of the search exceeded the circumstances.

Most importantly, the court ruled that, in light of the recent Riley decision, that a cellphone does not fall under the “automobile exception,” i.e., anything contained within the vehicle being searched can also be examined without a warrant.

Given the Court’s extensive analysis of cell phones as “containers” and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception. Just as “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” so too do cell phones differ from any other object officers might find in a vehicle. Id. at 2489. Today’s cell phones are unlike any of the container examples the Supreme Court has provided in the vehicle context. Whereas luggage, boxes, bags, clothing, lunch buckets, orange crates, wrapped packages, glove compartments, and locked trunks are capable of physically “holding another object,” see Belton, 453 U.S. at 460 n.4, “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Riley, 134 S. Ct. at 2488–89. In fact, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”

The court also refused to let the agent off the hook with the oft-used and abused “good faith exception.”

The governing law at the time of the search made clear that a search incident to arrest had to be contemporaneous with the arrest. See, e.g., United States v. Hudson, 100 F.3d 409, 1419 (9th Cir. 1996). The government has not met its burden to prove that a reasonably well-trained officer in Agent Walla’s position could have believed that the search of Camou’s cell phone one hour and 20 minutes after Camou’s arrest was lawful…

The Supreme Court has never applied the good faith exception to excuse an officer who was negligent himself, and whose negligence directly led to the violation of the defendant’s constitutional rights. Here, the government fails to assert that Agent Walla relied on anyone or anything in conducting his search of Camou’s cell phone, let alone that any reliance was reasonable. The government instead only asserts that by searching the phone, Agent Walla was not acting “recklessly[,] or deliberately” misbehaving. In this case, the good faith exception cannot apply.

As Orin Kerr points out in his analysis of this decision, it’s somewhat surprising that the government didn’t introduce the “Constitution-Free Zone” border free-for-all into its arguments for the legitimacy of a warrantless cellphone search. Kerr speculates that it maybe had too many exceptions in play already and that adding this might have produced nothing more than confusion. In the end, it’s the results that matter. An agent discovered child porn stored on a cellphone but government prosecutors are unable to do anything with that evidence because no warrant was obtained.

The same can be said for the next case, even though the underlying circumstances are different.

Homeland Security investigators set up a child porn sting in Brownsville, Texas. It tracked downloads to a residence via the IP address and set up surveillance. Although the IP address traced back to the house, there appeared to be no one living there. The agents then approached the house and spoke to the two residents. One of the residents, Miguel Beckes, had his laptop and external hard drives searched without a warrant. Beckes did sign a consent form but conflicting testimonies make it unclear as to whether he was ever clearly informed that he was giving agents permission to search his electronics.

The agents searched Beckes’ devices and found over 800 child porn images. The next day, the agents filed a criminal complaint against Beckes for one count of possession. Nearly 10 days later, they finally acquired a warrant to search the electronics they had already searched.

The judge notes that the government has the burden of proof when it comes to voluntary consent. Beckes’ testimony suggests the agents mislead him, referring to “suspicious activity” in his neighborhood, rather than what they were actually looking for. The judge also points out Beckes’ mental status (a mental capacity below what’s expected for someone his age, according to a psychiatric exam) as being part of the issue [pdf link].

Further, taking into account Beckes’ diminished mental capacity, the effects of Agent Baker’s actions are compounded, thus showing that Beckes merely acquiesced to Agent Baker’s claims of lawful authority rather than voluntarily, freely consenting to the search.

The judge goes into much further detail of the investigator’s wrongdoing towards the end of the decision.

[T]he Court is puzzled at the HSI agents failure to utilize the procedures available to legitimize or at least document this type of investigation and thus avoid the ensuing dispute regarding the validity of the search altogether. At least one year before Agent Baker visited Beckes’ residence, he had evidence that child pornography was being downloaded to an IP address associated with that location; evidence he deemed sufficient to apply for and actually receive a warrant to search Beckes’ home. Although this IP address was canceled before Agent Baker could execute the search warrant, in January of 2014 — at least eight months before his visit to Beckes’ residence — Agent Baker discovered that child pornography was again being downloaded to an IP address associated with the same residence.

Despite this evidence, which obviously would have been sufficient to obtain a second search warrant… the agents instead chose to proceed without a warrant and rely on attempts to secure the suspects’ voluntary consent to search their electronic devices. Then, having decided on this course of action, they did not even attempt to get a signed consent to search form to document this assent. These forms were obviously available in their own office. Although foregoing the necessary procedural safeguards may have seemed expedient at the time, there was no suggestion that time was of the essence or that any other reason existed for not getting a warrant, or at least proof that consent was given.

Further, the steps the agents took after securing the pornographic images from Beckes’ laptop computer suggest that they too doubted the legitimacy of Beckes’ consent to search. After arriving with Beckes at the HSI office, Agent Baker had him sign a consent to search form that included devices that had already been searched at Beckes’ residence. Then, nine days after the complaint against Beckes was filed in federal court, Agent Baker applied for and received a warrant to search Beckes’ electronic devices — a warrant that included devices Baker had already searched twice. Had he considered Beckes’ initial consent to search inarguably valid, Agent Baker likely would have deemed these subsequent actions unnecessarily redundant.

The final decision is much like the one above. The images found during the search at Beckes’ home are suppressed, along with everything found past that point, including his confession. In the former, the government is pretty much left with pursuing trafficking charges. In the latter, the entire case against Beckes’ is almost completely dismantled. Rather than abide by the processes and controls that ensure the usability of evidence as well as protect citizens’ rights, agents under the DHS’s large umbrella decided to improvise — and, in doing so, managed to let two people with child porn in their possession off the hook.

Filed Under: 4th amendment, child porn, law enforcement, privacy, warrants