from the ALMOST-everyone-is-NOT-everyone dept
The DC Court of Appeals has shot some holes [PDF] in a favorite law enforcement assertion: that cellphones are automatically containers of criminal evidence just because suspected criminals — like nearly everyone else in the nation — have cellphones. A criminal case involving a suspected getaway driver for a year-old homicide somehow led to police seeking a warrant to seize and search all electronics found at the suspect’s current residence.
The details of the case are as follows: defendant Ezra Griffith talked to a couple of people about law enforcement’s interest in his vehicle, which was apparently caught on surveillance cameras near the homicide crime scene. He had these discussions while incarcerated for something else, acting as his own tipster by discussing the car on jail phones. (ALL CALLS ARE RECORDED, etc.)
After being released, Griffith moved in with his girlfriend. Police sought a warrant to search this residence as part of its ongoing homicide investigation. The 22-year law enforcement veteran who obtained the warrant made the following declaration in his affidavit:
Based upon your affiant’s professional training and experience and your affiant’s work with other veteran police officers and detectives, I know that gang/crew members involved in criminal activity maintain regular contact with each other, even when they are arrested or incarcerated, and that they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices and the Internet, to include Facebook, Twitter and E-mail accounts.
Based upon the aforementioned facts and circumstances, and your affiant’s experience and training, there is probable cause to believe that secreted inside of [Lewis’s apartment] is evidence relating to the homicide discussed above.
What wasn’t mentioned was anything indicating a) Griffith owned a cellphone or b) evidence related to last year’s homicide would be found on it. Obviously, the cop swearing out the warrant didn’t have much confidence in this assertion either, as he broadened it to cover all electronics located in an apartment that, until very recently, had only been lived in by Griffith’s girlfriend.
As the Appeals Court points out, there’s not enough in the warrant to support these assertions.
The government’s argument in support of probable cause to search the apartment rests on the prospect of finding one specific item there: a cell phone owned by Griffith. Yet the affidavit supporting the warrant application provided virtually no reason to suspect that Griffith in fact owned a cell phone, let alone that any phone belonging to him and containing incriminating information would be found in the residence. At the same time, the warrant authorized the wholesale seizure of all electronic devices discovered in the apartment, including items owned by third parties. In those circumstances, we conclude that the warrant was unsupported by probable cause and unduly broad in its reach.
It’s not that the warrant was short on probable cause. It’s that it was the wrong kind of warrant for the assertions made.
Here, the lion’s share of the affidavit supporting the warrant application is devoted to establishing Griffith’s suspected involvement as the getaway driver in a homicide. That information might have established probable cause to arrest Griffith for his participation in the crime. The warrant application, though, was for a search warrant, not an arrest warrant. And to obtain a warrant to search for and seize a suspect’s possessions or property, the government must do more than show probable cause to arrest him. The government failed to make the requisite showing in this case.
As the court notes, the warrant asked for all kinds of things it had no business asking for, not with the dearth of supporting probable cause for a search. It allowed the police to seize any electronic device found in the residence, along with any other documents, newspapers clippings, photographs, etc. related to the homicide.
The court also says the officer made a logical leap he shouldn’t have. While it is indisputable cellphones are ubiquitous, there’s nothing in the affidavit supporting the officer’s conclusion Griffith owned one.
There was no observation of Griffith’s using a cell phone, no information about anyone having received a cell phone call or text message from him, no record of officers recovering any cell phone in his possession at the time of his previous arrest (and confinement) on unrelated charges, and no indication otherwise of his ownership of a cell phone at any time. To the contrary, the circumstances suggested Griffith might have been less likely than others to own a phone around the time of the search: he had recently completed a ten-month period of confinement, during which he of course had no ongoing access to a cell phone; and at least one person in his circle—his potential coconspirator, Carl Oliphant—was known not to have a cell phone.
The court points out the government could have avoided this mess. It had enough for an arrest warrant. With that, it could have arrested Griffith and searched him for any belongings, which likely would have included a cellphone. But it chose to go with an amazingly broad search warrant instead — one that allowed it to seize all electronics before determining if any belonged to the suspect.
The court allows suppression of the evidence. The warrant was invalid upon issuance, thanks to the lack of probable cause. Even good faith can’t save it.
We conclude that the affidavit in this case fell short to an extent precluding good-faith reliance on the warrant. As explained, the government’s theory of probable cause to search the apartment runs as follows: (i) Griffith might own a cell phone; (ii) if so, his phone might be found in the residence; and (iii) if so, the phone might retain incriminating communications or other information about a crime committed more than one year earlier. Whatever may be the reasonableness of any of those inferences standing on its own, demonstrating probable cause required adequately establishing all three in combination. The affidavit did not approach doing so. It provided no explanation at all of whether Griffith might own a phone or whether any such phone might be in his home. And with regard to whether any phone would retain any incriminating information about a shooting occurring more than one year beforehand, it observed only that gang members often stay in contact about their activities.
In this case, it’s nothing found on the devices being suppressed, but the gun tossed out the window by Griffith when police knocked on his girlfriend’s door. Along with the suppression comes the reversal of Griffith’s conviction.
The dissenting opinion, written by Judge Janice Brown, is positively overwrought in its fear of what this decision will do to “good” police officers who are used to relying on broad assertions and compliant magistrates.
This result is directly contrary to the purpose of the exclusionary rule and Supreme Court precedent that reserves suppression only for the most serious police misconduct. If courts are going to impose a remedy as extreme as excluding evidence that is probative, reliable, and often determinative of a defendant’s guilt, we have a duty to protect officers who are doing their best to stay within the bounds of our ever-evolving jurisprudence. We live in a society where virtually every action an officer takes is now being heavily-scrutinized. Thus, the need for vindication when law enforcement officers behave in an exemplary fashion is more critical than ever. Unfortunately, the officers in this case are not going to get the vindication they deserve. Furthermore, I have no doubt this case will be used in future cases to further undermine the good faith exception until either this Court sitting en banc or the Supreme Court steps in to cure today’s grievous error.
This is a bit much, considering the good faith exception is pretty much the rule everywhere and the government routinely survives suppression motions in all but the most egregious of cases. Asking cops to provide probable cause before seizing and searching electronics is just following the word (and spirit) of the Supreme Court’s Riley decision, which makes cellphones (and other electronic devices) every bit as sacrosanct as the homes and lives they vicariously represent.
Filed Under: dc, fourth amendment, law enforcement, privacy