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search warrant which authorized viewing of pictures on cell phone for drugs is saved by good faith exception


State trooper Burt Blue pulled over Brian Morton’s van on Interstate 20 about fifty miles west of Fort Worth. After approaching the driver’s side door, Blue smelled marijuana. Morton eventually admitted he had marijuana in the van. Blue then searched Morton and found an Advil bottle in his right pocket. The bottle contained several different colored pills that Morton admitted were ecstasy. Morton was arrested.

Blue and another trooper searched the van. Inside a plastic container wrapped in tape they discovered two plastic bags, one of which contained a small amount of marijuana. They also found a glass pipe with marijuana. In addition to the drug evidence, the troopers discovered approximately 100 pairs of women’s underwear, a number of sex toys, and lubricant. A backpack with children’s school supplies was also inside the van. A lollipop was inside a cupholder. Based on what they found in the van, the troopers were concerned Morton was a sexual predator.

The troopers also seized three cellphones during the search of the van. A few days after Morton’s arrest, Blue applied for search warrants for the three phones. The search warrants sought evidence of drug possession and dealing. In the affidavits he submitted in support of the warrants, Blue recounted the traffic stop and the drug evidence discovered in the van and on Morton.

He also explained why, based on his experience, he believed it likely that the cellphones contained evidence of illegal drug activity. People often communicate via cellphone to arrange drug transactions. And criminals often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs.

Pursuant to the warrant to search for drug activity, Blue and a Department of Public Safety agent searched the phones and saw images they believed were child pornography. They stopped searching and sought a second warrant seeking evidence of child pornography. Pursuant to the second warrant for child pornography, the forensic search of the phones that followed located 19,270 images of child pornography on the three phones.

Morton argued that probable cause did not support the initial warrants allowing the phone searches but the trial judge refused to suppress the evidence. He concluded that the good-faith exception to the suppression rule applied. Morton then entered a conditional guilty plea that allowed him to challenge the searches on appeal.

In Morton, the 5th held that the search warrant for drug activity successfully established probable cause to search Morton’s contacts, call logs, and text messages for evidence of drug possession. However, they went onto say that the warrant did not establish probable cause that the photographs on Morton’s phones would contain evidence pertinent to drug possession. They also said that the good faith exception did not apply. Thus, they suppressed the evidence.

The 5th then agreed to take this case en banc. The entire 5th circuit then reversed the original 5th circuit panel and held that the good faith exception does apply here. In other words, Morton’s conviction was affirmed.


A. Good faith exception

U.S. Supreme Court case Riley v. California, 573 U.S. 373 (2014), held that the search of a cellphone incident to arrest requires a warrant. Morton argues that Riley’s warrant requirement will be a mere formality if officers can search an entire phone based on nothing more than the fact that criminals sometimes use phones to conduct their illicit activity.

However, a longstanding rule resolves the case: Evidence should not be suppressed when law enforcement obtained it in good-faith reliance on a warrant. See United States v. Leon, 468 U.S. 897 (1984).

Deference to the judge issuing the warrant and the exclusionary rule’s focus on deterring police misconduct results in the good-faith exception to the suppression remedy: A warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting a search. Normally, but not always. The Supreme Court identified four situations when a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.

Reliance on a warrant is unreasonable when: 1) the magistrate issued it based on information the affiant knew was false or should have known was false but for reckless disregard of the truth; 2) the magistrate wholly abandoned the judicial role; 3) the warrant is based on an affidavit so lacking in probable cause as to render belief in its existence unreasonable; and 4) the warrant is facially deficient in particularizing the place to be searched or things to be seized.

B. Bare bones affidavits

Morton principally tries to defeat good faith by invoking the third exception, which involves what are commonly known as “bare bones” affidavits. Bare bones’ affidavits contain wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause.

The alleged falsehood is keeping from the magistrate that the affiant’s motive was not obtaining evidence of drug crime but investigating suspicions that Morton was a sexual predator. In other words, Morton is arguing that the reason for obtaining the warrant was pretextual. Even if Morton could prove this motive, it would not matter. The Supreme Court has repeatedly held that the Fourth Amendment inquiry, including the existence of probable cause, is objective.

Consider affidavits we have found to be bare-boned. In what we described as a textbook example of a facially invalid, barebones’ affidavit, the officer listed just the defendant’s biographical and contact information and then stated nothing more than the charged offense, accompanied by a conclusory statement that the defendant committed that crime. See Spencer. In another case, an officer obtained a warrant to search a motel room based on an affidavit stating nothing more than that the officer received information from a confidential informant who was known to him and who had provided information in the past that had led to arrest and convictions. See United States v. Barrington, 806 F.2d 529 (5th Cir. 1986).

The affidavits used to search Morton’s phones are not of this genre; they have some meat on the bones. Each is over three pages and fully details the facts surrounding Morton’s arrest and the discovery of drugs and his phones. They explain where the marijuana and glass pipe were discovered, the number (16) and location of the ecstasy pills, and the affiant’s knowledge that cellphones are used for receipt and delivery of illegal narcotics.

In support of the request to search for photos on the phones, the affiant explains he knows through training and experience that criminals often take photographs of co-conspirators as well as illicit drugs and currency derived the sale of illicit drugs. Whatever one might conclude in hindsight about the strength of the evidence it recounts, the affidavit is not wholly conclusory.

The judge made a judgment call. Judgment calls in close cases are precisely when the good-faith rule prevents suppression based on after-the-fact reassessment of a probable-cause determination.

Morton contends it would gut Riley if the linking of criminal activity to cellphones can be based on nothing more than an officer’s experience that certain offenders often use cellphones in connection with their crimes. But this is not such a case. Morton had multiple phones in his car along with the drugs, which our court and others have recognized can indicate that the phones are being used for criminal activity. See Bams.

It is a close call whether the evidence recounted in the affidavits established probable cause for drug trafficking as opposed to drug possession. And if the evidence indicated only possession, then it is another close call whether there was probable cause to believe that evidence of drug possession would be found on the phones. But as we have emphasized, on close calls second guessing the issuing judge is not a basis for excluding evidence.

Viewed in their entirety, the affidavits supporting the warrants are far from bare bones. It thus was reasonable to rely on the warrants and search the phones.

The officers relied in good faith on the warrants the state judge issued. On finding images that appeared to be child pornography, they went back to the judge for additional warrants (Morton does not challenge how the searches were conducted). We see no unreasonable law enforcement conduct that warrants suppression of the evidence the searches discovered.

We do not decide if the state judge should have authorized full searches of the phones based on these affidavits. We decide only that the officers acted in good faith when relying on the judge’s decision to issue the warrants.