Fifth Circuit Tosses Child Porn Conviction Predicated On Unconstitutional Searches Of Three Cellphones

Legal Issues

from the looking-for-evidence-of-a-crime-not-being-charged-is-pretty-fatal-to-probable-ca dept

There’s a warrant requirement for cellphone searches, thanks to the Supreme Court’s Riley decision. But not every search is, um, warranted, even when officers have a search warrant in hand.

A case [PDF] recently handled by the Fifth Circuit Court of Appeals makes this point clearly and effectively. It’s the “effective” part that matters the most. A search that went outside the boundaries of the affidavit’s stated purpose has resulted in a vacated child porn conviction.

It all started with a traffic stop — one that first led officers to believe they’d made a drug bust.

Brian Matthew Morton was stopped for speeding near Palo Pinto, Texas. After the officers smelled marijuana, he gave consent to search his van. Officers found sixteen ecstasy pills, one small bag of marijuana, and a glass pipe.

Then things got a little weird.

When, however, they discovered children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear in the vehicle, they became more concerned that Morton might be a pedophile.

But the arrest was for drug possession, since the rest of the items, while concerning, were not illegal to possess. Texas Dept. of Public Safety Trooper Burt Blue applied for a warrant to search three cellphones found in the van. But if the trooper had suspicions about possible child porn production/possession, he didn’t bother to add that to the search warrant affidavit.

Trooper Blue’s affidavits for the search warrants mentioned no concerns about child exploitation; instead, the warrants purported to seek more evidence of Morton’s criminal drug activity based on Trooper Blue’s training and experience—fourteen years in law enforcement and eight years as a “DRE-Drug Recognition Expert”—as well as the drugs found in Morton’s possession and his admission that the drugs were in fact marijuana and ecstasy.

Here’s what the affidavits claimed — that Trooper Burt would be searching for evidence of drug possession.

It is the belief of affiant that suspected party was in possession of and is concealing in [the cellphones] . . . [e]vidence of the offense of Possession of [ecstasy], possession of marijuana and other criminal activity; to wit telephone numbers, address books; call logs, contacts, recently called numbers, recently received calls; recently missed calls; text messages (both SMS messages and MMS messages); photographs, digital images, or multimedia files in furtherance of narcotics trafficking or possession.

That’s a weird thing to search phones for, especially when the suspect was arrested because of the drugs he had in his possession. The affidavits claimed the phones would be searched for evidence of “other criminal activity,” and asked for blanket permission to search almost everything on the phones for more evidence. But the final part of this statement narrowed the scope back to a pinpoint, indicating exactly what Trooper Blue would be searching the phones for: evidence of “narcotics trafficking or possession.”

Once investigators got into the phones, they completely forgot they were supposed to be looking for evidence of drug possession and trafficking.

While searching the phones’ photographs, Trooper Blue and another officer came across 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. The government then indicted Morton for a violation of 18 U.S.C. § 2252(a)(2) for the child pornography found on his three cellphones. The subject of drugs had vaporized.

Brian Morton attempted to suppress the original warrants — the ones seeking evidence of drug possession — claiming they were not supported by probable cause. The trial court ruled in favor of the government and Morton was sentenced to nine years in prison on child porn possession charges.

On appeal, the government admitted it needed separate probable cause to search each category of information targeted by warrants. A warrant to search a phone is not a blanket permission slip. Since phones carry more personal information than most people’s houses at this point, the Fourth Amendment bar is raised.

The government still believes it should be able to use the good faith exception to excuse any lack of specific probable cause to search the phones for evidence of drug crimes. The court isn’t willing to give the government a pass on this. While probable cause may have supported a search of text messages, IMs, and phone contacts (because to buy drugs, a person generally has to communicate with a dealer), it did not support the search of the photos that led to Morton’s conviction on child porn charges.

[T]he affidavits also asserted probable cause to believe that the photographs on Morton’s phones contained evidence of other drug crimes, and on this claim, they fail the test of probable cause as related to the crime of possession. That is, they fall short of raising a “substantial chance” that the photographs on Morton’s phones would contain evidence pertinent to his crime of simple drug possession.

Trooper Blue may have “fourteen years of experience” as a drug warrior, but his assertion photos on the phones would contain further evidence of drug possession is highly flawed. It presupposes something not inherent in the amount of drugs found in Morton’s van.

The syllogism that Trooper Blue offers to gain access to Morton’s photographs does not provide adequate grounds for the extensive search. In short, the syllogism is (1) Morton was found with personal-use quantities of drugs; and (2) drug dealers often take photos of drugs, cash, and co-conspirators; it therefore follows that (3) the photographs on Morton’s phones will provide evidence of Morton’s relationship to drug trafficking. The fallacy of this syllogism is that it relies on a premise that cannot be established, namely that Morton was dealing drugs. And here, Trooper Blue disregarded key facts that show that the evidence did not support probable cause that Morton was a drug dealer.

The trooper only found a single, small bag of marijuana and a few ecstasy pills. He did not find anything that would have suggested Morton was a dealer, like scales, packaging, or weapons. Also, as the court points out, Morton was originally charged with “possession,” not “trafficking.” This further indicates the trooper did not actually believe Morton was a dealer.

And that nullifies the searches of Morton’s photos — the ones that took the investigation in an entirely new direction.

Since it seems that no evidence supported probable cause to believe that Morton was dealing in drugs, the affidavit leaves us with only the allegations that (1) Morton was found with drugs so (2) it therefore follows that the photographs on Morton’s phones will provide evidence of Morton’s crime of drug possession. With only this bare factual support that Morton possessed drugs, the affidavits contain nothing to link Morton’s marijuana and ecstasy with the photographs on his phones. The affidavits thus do not create a “fair probability” or a “substantial chance” that evidence of the crime of drug possession will be found in the photographs on Morton’s cellphones. Therefore, under these facts and based on the specific language in these affidavits, we hold that probable cause was lacking to search Morton’s photographs for proof of his illegal drug possession.

The government gets no “good faith” award for relying on faulty warrants. Just because a judge signed off on the requests does not mean the requests were justified, even if they ultimately resulted in issued warrants.

Here, even giving the magistrate’s determination the deference due, we hold that the magistrate did not have a substantial basis for determining that probable cause existed to extend the search to the photographs on the cellphones. Even if the warrants provided probable cause to search some of the phones’ “drawers” or “file cabinets,” the photographs “file cabinet” could not be searched because the information in the officer’s affidavits supporting a search of the cellphones only related to drug trafficking, not simple possession of drugs. There was thus no substantial basis for the magistrate’s conclusion that probable cause existed to search Morton’s photographs, and the search is not saved by the magistrate’s authority. The search was unconstitutional, not subject to any exceptions, and the evidence must be suppressed as inadmissible.

And, since the initial searches weren’t based on probable cause, the subsequent searches following the discovery of child porn are irrevocably tainted. The evidence is thrown out and, without the thousands of child porn photos, the government has nothing left but some sex toys, women’s panties, and a lollipop. That might be a little creepy in this context, but there’s no law forbidding people from driving around with unusual items in their vehicles.

Filed Under: 4th amendment, 5th circuit, csam, mobile phones, riley, searches