Court: It's Cool If The (Federal) Government Searches A Phone The (Local) Government Seized Illegally
from the Fifth-Circuit's-bizarre-vendetta-against-the-Constitution-continues dept
The Fifth Circuit Court of Appeals has decided it's OK if a government agency searches a phone that should never have been seized in the first place… so long as it's not the same government agency that illegally seized it. The illegality of the original seizure -- which should have provoked some discussions of poisonous trees and their harmful fruit -- is pretty much discarded in favor of the good faith exception.
The backstory is this: Charles Fulton Jr. was targeted by the Galveston (TX) Police Department -- working in tandem with the FBI -- for sex trafficking and prostitution of teens. He was ultimately found guilty on four sex trafficking charges, prompting this appeal of the district court's refusal to toss out the evidence pulled from his seized phone.
Here's how the seizure and very eventual search went down, taken from the court's decision [PDF]. (Some emphasis added for reasons that will become apparent momentarily.)
In February 2015, Galveston police obtained a search warrant on the Avenue L house where the prostitution was based. The warrant, though, was due to a separate investigation into Fulton’s narcotics activities. Fulton’s cellphone was seized. Nine days later, police obtained a second warrant to examine its contents but were unable to bypass the phone’s security features. Around this same time, the FBI agent assisting with the Fulton sex-trafficking investigation learned that the Galveston police had the phone. The agent acquired it to determine if the FBI could access the phone’s data. Three weeks later, that agent obtained a federal warrant to search the phone. Still, it took a year before the data on the phone was accessed. The FBI discovered evidence that helped piece together Fulton’s involvement with the minor victims.
Recovered from the phone were text messages and photographs linking Fulton to the five minor victims he was trafficking. Fulton challenged the original seizure of the phone by the Galveston PD, hoping that a finding in his favor would eliminate the evidence pulled from the phone by the FBI.
The appeals court agrees with Fulton that the phone's seizure was illegal. The warrant makes no mention of seizing phones or other electronics. And yet, that's exactly what was seized. The government tried to claim Fulton's phone was pretty much the equivalent of something else actually mentioned in the warrant.
This narcotics warrant did not mention cellphones. The alleged equivalent was a reference to “ledgers,” which is a “book . . . ordinarily employed for recording . . . transactions.” Ledger, OXFORD ENGLISH DICTIONARY (2d ed. 1989). The government argues that is enough, because this court has held that a cellphone that is “used as a mode of both spoken and written communication and containing text messages and call logs, served as the equivalent of records and documentation of sales or other drug activity.”
The government quoted precedent allowing the word "ledger" to stand in for "computers, disks, monitors" and other hardware that might contain the equivalent of a ledger. The court says all that would be fine if the government made any mention of ledger equivalents in its warrant. But it didn't.
We do not see the same factors involved in the present case. There was nothing in the Galveston warrant suggesting that anything similar to computers or even electronics was to be seized. Moreover, the officer in this case was a veteran of the Galveston Police Department’s narcotics unit, and he indicated at the suppression hearing that he knew cellphones are used in the drug trade. Though a ledger can serve one of the myriad purposes of a cellphone, we do not extend the concept of “functional equivalency” to items so different, particularly one as specific, distinguishable, and anticipatable as a cellphone.
The government says the good faith exception should apply to the FBI's search of the illegally-seized phone. This argument wasn't even addressed by the lower court, which found other grounds to grant the government's use of this evidence.
The appeals court does take a swing at this argument, though, but not to the benefit of Fulton and others similarly-situated in the circuit. Good faith it is.
We conclude that viewed objectively, an FBI agent who obtained a search warrant in these circumstances would not have had reason to believe the seizure and continued possession of the cellphone by the Galveston police were unlawful.
The (federal) government gets this win even though the (local) government has just been handed a loss. Despite the fact the two agencies worked "in tandem" on this investigation, the court still decides the reasonably ignorant FBI agent had no way of knowing the phone handed to them by their investigation partner had been seized illegally.
And I suppose that's possibly true. The FBI assists in many investigations instigated by local agencies once there's a possibility that federal charges may be the end result. But a decision like this just encourages everyone in a joint investigation to be as blissfully ignorant as possible to obtain the best possible chance at securing a good faith ruling. In this case, an agent was working directly with the Texas agency and found out the Galveston PD had seized a phone, but didn't take a look at the PD's paper trail before crafting an affidavit of their own. That's the exact opposite of "good faith." That's bad faith -- the least amount of knowledge and effort combining to allow for law enforcement rule-bending and access to pre-made judicial excuses molded from years of slack-cutting precedent.
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Filed Under: 4th amendment, 5th circuit, charles fulton jr., fbi, federal government, illegal searches, local government
Reader Comments
The First Word
“An illegal seizure is a theft even if unprosecuted
So the local cops illegally seized property, which if the system weren't corrupt as all hell would be prosecuted as armed robbery, but is without doubt at least theft of property.
So the cops now have illegal possession of that property, and turn it over to the feds. The feds received stolen property, and used it as they saw fit.
The Equal Protection Clause seems to apply here -- a fence does not ask where the goods came from, he just buys them. He may suspect that they were stolen but the FBI as the agency in charge of investigating police abuses of power has that suspicion about police seizures too. For them to accept a seized phone without the necessary seizure paperwork is highly suspicious. If that's acting in good faith, then the fence is too!
Result: The Equal Protection Clause has effectively, pending an appeal to the Supreme Court, abolished the laws against receiving stolen property in the Fifth Circuit.
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Fuck the good faith exception and any judge who accepts it as valid.
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Re: "discordian_eris" shows my B) hate Western civil society...
Man, couldn't ask for better illustration of what I stated!
You are against "good faith" as such.
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Where is the “good faith” in this situation?
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Re:
This is the end of America.. the beginning of the end.
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Re:
It's cool. The suspect did his illegal shit right and was too clever to hide his evidence from us using parrots and passenger pigeons. It's better that investigated ourselves and found nothing wrong with what the courts do to child sex traffickers, than everyone else have inalienable rights. /sarcasm
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Liberals never miss a chance to push out the margins of crime.
Techdirt has particular fondness for sex-traffickers as here, still objects to FOSTA.
Next you'll be claiming Epstein was framed and railroaded instead of got unique privilege of connected billionaire and escaped justice for ten years.
Frankly, I don't care! Long ago stopped defending people who deliberately go to the margins. That's their responsibility and problem.
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Re: Liberals never miss a chance to push out the margins of crim
(Had to break, then right in.)
Now, the utility side: Will this decision ever affect me or you?
Me not unless framed, and it done well.
Anyone actually concerned needs to answer the question: are you, other persons, society, better off if this particular person gets jailed based on this chain of events, with the given facts clearly nailed down? Or are you going to act on supposed high principle and let a known sex-trafficker off, claiming that no punishment and free to commit further crimes is the least evil?
You can't use the "better ten guilty go free" when there's no actual question of innocence, only whether to allow evidence. That's the sitch here.
But Techdirt / liberals always answer yes, let 'em off, because A) fear may be caught similarly, especially on drug charges, and B) hate Western civil society even while pretending to be its biggest defenders.
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Re: Re: Liberals never miss a chance to push out the margins of
Glad to you know don't give a rip about violations of rules set in place to prevent things like people being frame by government agents, as long as it does effect you and/or you think the persons actually guilty
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Blue Balls hates due process. He probably faps to police brutality videos.
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Re:
Or... maybe he's envious of people who's rights are violated, and just doesn't know how to deal with his (or her I guess maybe that's a possiblity) urges?
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Re: Re: Liberals never miss a chance to push out the margins of
hmm if 'tained' evience asside, there is no question about guilt, then why not let the events be thrown out? After all, you are arguing there's plenty of other evidence to convict him, so why not convict him in a legally sound way?
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Guilt or innocence doesn’t, and shouldn’t, determine whether someone deserves their civil rights. Criminals, accused or convicted, deserve the same protections afforded to the innocent — no more, no less.
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Re:
Try telling this exactly as you wrote it to modern jailers. They will laugh in your face. You really don't know the millions of violations against America's incarcerated.
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Re: Re:
Are you saying that because people's rights are violated frequently that we should just give up hope to have rights?
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Re: Re: Re:
No, but if you are in jail, you are pretty much fucked out of any right you ever thought you had as a citizen of US. You can only try to make a call out to local bondsmen. Good luck with that. Judges will raise your bond so its so high you can't bond out because they listen to every swinging dick's conversation on those in cell phones.. And use it against you.
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Re: Re:
How's that cop-flavored phallus taste, blue?
You do know you have to come up for oxygen on occasion, don't you? (Or don't. You asphyxiating is something I'd have to break my own ribcage from the sheer exertion of squeezing out a fragment of sympathy for.)
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Re: Re: Liberals never miss a chance to push out the margins of
You, sir, are daft.
When I was in the Marine Corps I found for your First Amendment rights to say daft things. I also fought for the other 27 amendments and for the body of the original constitution. I protected it against "all enemies, foreign ir domestic." You are a domestic enemy of the constitution if you believe it shouldn't apply to someone YOU think is guilty. When I got out of the Corps I went to law school so I could continue in my fight as constitution-haters.
The Framers of our constitution put in place a mechanism for determining guilt, and if that mechanism is oiled and maintained and allowed to run smoothly, then liberty (or life) will only be taken away from the truly guilty. If that mechanism ejects someone because the process compels that ejection, then that process worked as the Framers intended it. If you don't like what the Framers created, start a civil war. Or go somewhere else and found your own country with your own rules. I love my country, and I love my constitution. The difference between you and me is that I believe the constitution applies to everyone; you don't. If we can start deciding who is worthy of constitutional protections and who isn't, then we are well on our way to tyranny. Tyrants will get the benefit of seeing my fighting for the constitution in both methods for which I have been trained.
Good day, sir.
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Re: Re: Liberals never miss a chance to push out the margins of
if the law is seriously incapable of providing other evidence of this apparently extensive prostitution and trafficking (including that of minors!), then law enforcement needs to get off their asses and shoeleather harder.
they shouldn't need the damn phone.
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Re: Re: Liberals never miss a chance to push out the margins of
Maybe if the lawyers had to do jail time when their clients are found guilty of a crime, there might be a much more down to earth legal justice system in this country.
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Re: Re: Re: Liberals never miss a chance to push out the margins
If by "down to earth" you mean fascists of the sort to have secret mass graves while holding no higher ideal than finding more power to abuse yes it would.
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Re: Re: Re: Re: Liberals never miss a chance to push out the mar
Oh, but the other half of that is the prosecution goes to jail if the accused is found innocent by a jury of their peers.
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Re: Liberals never miss a chance to push out the margins of crim
I'd love a crack at the oracle you use to determine that everyone accused (of anything, apparently) is guilty (of "going to the margins"). And how's that work for the folks who are black or yellow, Jewish or atheistic, female or formerly male? There are some things you don't have so much choice in....
Eventually those margins are going to wear away, and you'll find yourself on the margins yourself. Good luck with that.
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This doesn't strike me as crazy. The purpose of the exclusionary rule is to force law enforcement to get search warrants.
As I read the opinion, the Galveston Police: (1) obtained a warrant prior to seizing the phone; (2) had a non-frivolous, though ultimately unsuccessful, argument their warrant authorized seizing the phone; and (3) obtained a separate warrant authorizing downloading the contents of the phone. It doesn't strike me as unreasonable for the FBI to rely on Galveston's mistaken belief that they had a valid warrant and were properly holding the phone - just as people generally rely on professional advice in a whole host of circumstances. I also think it's notable that the FBI then obtained a separate federal warrant for the phone's contents and had that warrant in hand before downloading anything from the phone.
I can certainly see an argument the case should have come out the other way. But a rule that federal law enforcement has some protection if they ensure local police obtain valid warrants and have a good faith belief that property turned over is covered by those warrants, may encourage more warrants - not fewer.
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Good. Better they leave a paper trail than no trail at all.
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Re:
That leads to abuse of warrants, where an illegal seizure by one agency is turned into useful evidence by passing it on to another agency.
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Silver Platter Doctrine
The Supreme court ruled this to be a violation of the 4th amendment in 1960
https://en.wikipedia.org/wiki/Elkins_v._United_States
The Appeals court needs to be Schooled.
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Re: Silver Platter Doctrine
That was then, this is now, unfortunately.
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Re: Re: Silver Platter Doctrine
The meaning of words has changed enough for the 4th to no longer be valid?
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When the people tasked with upholding the Constitution don’t give a shit about the Fourth Amendment, whether the language is valid doesn’t matter.
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Re: Re: Re: Silver Platter Doctrine
Say WHAT? Must site examples of what words no longer mean what they originally meant where Scotus rulings are involved..
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Sounds like some federal agents didn't follow procedure and check that all the paperwork attached to the evidence (chain of custody and warrants) was all proper. Again, politicians and police chiefs wonder why 'no one respects the police anymore!', crap like this is the cause.
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Oh, great. Time to add another definition to "evidence laundering."
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Monitors?
Monitors! lmao
This is just like movies and idiots who smash a display because they are angry at what they or some software did, or because they need to destroy it to stop something from happening.
Monitors, indeed. Probably more like CAF, they can auction it for cash later.
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Just assume that the government is a gang of criminals and you'll never be disappointed. Encrypt everything you want to keep private. Use a password, not anything biometric, to lock your phone and flip off any thug who demands you unlock it.
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Yes, please do exactly that. I look forward to reading your Darwin Award article.
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Speaking of Darwin.. funny you mention him because by the time the government releases him from jail, he will have evolved into a species no one will understand or even care about!
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'Just assume that the government is a gang of thugs and you'll never be disappointed.'
That is really a funny sentence! Tickled me funnybone! Lol
Techdirt is so full of entertainment!
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Perhaps we need to stop giving the courts good faith exceptions when they make rulings that destroy our rights to protect shitty police work.
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Re:
'Perhaps we need to stop giving courts good faith exceptions... '
How do "We the People" stop the courts from doing what they like especially when it comes to them protecting da boys (and girls) who bring all this legal justice law breaking stuff to them from the field?
That would truly be amazing!
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An illegal seizure is a theft even if unprosecuted
So the local cops illegally seized property, which if the system weren't corrupt as all hell would be prosecuted as armed robbery, but is without doubt at least theft of property.
So the cops now have illegal possession of that property, and turn it over to the feds. The feds received stolen property, and used it as they saw fit.
The Equal Protection Clause seems to apply here -- a fence does not ask where the goods came from, he just buys them. He may suspect that they were stolen but the FBI as the agency in charge of investigating police abuses of power has that suspicion about police seizures too. For them to accept a seized phone without the necessary seizure paperwork is highly suspicious. If that's acting in good faith, then the fence is too!
Result: The Equal Protection Clause has effectively, pending an appeal to the Supreme Court, abolished the laws against receiving stolen property in the Fifth Circuit.
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