Fifth Circuit Tosses Child Porn Conviction Predicated On Unconstitutional Searches Of Three Cellphones
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.
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Filed Under: 4th amendment, 5th circuit, csam, mobile phones, riley, searches
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'We found evidence suggesting that he was a user, therefore we requested a warrant based upon the idea that he was a dealer, and then while we were searching we found a ton of incriminating stuff for an entirely different crime and forgot the drug thing entirely right until it came time to defend the original warrant that was only drug related.'
Brilliant. Gorram idiots botched what could have been a slam-dunk case because they decided to base their warrant request on bogus arguments and got rightly called on it. So much for 14 years of experience.
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Does call into question what else he got away with the previous 14 years.
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He had 14 years of experience with judges who rubber stamped his flimsiest hunches. Why would he expect that not to happen now?
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"Brilliant. Gorram idiots botched what could have been a slam-dunk case because they decided to base their warrant request on bogus arguments and got rightly called on it. So much for 14 years of experience."
This is one of those clear-cut examples where I at least believe the US law enforcement system is seriously lacking. In a jurisdiction where Free Proof is the standard this would have been a slam-dunk case indeed.
But if Free Proof is applied a number of shady maneuvers regularly used by US law enforcement can't be valid so instead there's a system which tosses out verifiable evidence for the sheer fact that it wasn't properly collected. All in order so as not to restrict the ability of law enforcement to pull gray-area maneuvers such as sting ops and plea bargains.
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The truly sad part is if they had used the original warrant, said "We didn't find any drug trafficking evidence yet because we found THIS", then got another warrant, this particular piece of shit wouldn't be free.
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Revolting but correct
Damn. I hate to see this scumbag back on the streets. I'd like to see him thrown under the jail until he rots. But legal protections protect the guilty as well as the innocent and there's no way to avoid that. Hopefully, he does something stupid again and gets what he deserves. Meanwhile, the rest of us still enjoy some protections against police over-reach.
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I wonder what was the back-end reasoning on not actually applying for a search warrant for pedophilia paraphernalia, given that's where they felt the investigation was going. "These things are weird, but not illegal, and women's underwear is... women's, not pre-teen children's, so not enough for any sort of warrant." So let's engage with even worse and flimsier ideas.
I mean, seriously, do better.
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"I wonder what was the back-end reasoning on not actually applying for a search warrant for pedophilia paraphernalia, given that's where they felt the investigation was going."
Because it's at best a flimsy case. Imagine, for a second, that what they got was someone who'd been shopping his stuff at a surplus store, accounting for the 100 lady underwears and school supplies. That leaves one piece of candy and 14 sex toys to be explained. Which I can well imagine a number of people possessing without criminal intent. Honestly, if I was a judge I'd at least want some circumstantial evidence or prior history before I wrote a warrant. Some context, in other words.
What is really astonishing to me is the way the US still abstains from Free Proof just because that would undermine the judicial validity of many gray-area legal maneuvers; sting ops, plea bargaining, etc.
I think that if you do have a warrant what should be important is simply that there must be one defensible reason for the warrant and a limit on the extent of intrusion. Anything found within that scope should be considered valid evidence.
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Re: Re:
Often time the exclusionary rule is all that stands between citizens and giving free reign to unscrupulous cops and prosecutors. Without it, they would be free to run roughshod over your rights without consequence. With it, if they break the rules they don't get to benefit from their actions.
Will some criminals get away, sure, but it's better for the rest of society that those with the power to ruin/end lives have some constraints on their actions.
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Re: Re: Re:
So what's the difference from the current state of affairs? The whole thing with Qualified Immunity means that they already run roughshod over peoples rights while at the same time we have unscrupulous prosecutors that aren't really interested in justice because they are trying to build a political career through grandstanding.
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Re: Re: Re:
"Often time the exclusionary rule is all that stands between citizens and giving free reign to unscrupulous cops and prosecutors. Without it, they would be free to run roughshod over your rights without consequence."
Only because the exclusionary rule leaves a number of ethically dubious maneuvers legal. Where I live Free Proof is the standard, but cops and prosecutors instead lack a lot of the discretionary power which appears to have trained US law enforcement to see the legal process as a subjective process.
If you want to talk about the fruit of the poisonous tree then that's where you'll find it.
"Will some criminals get away, sure, but it's better for the rest of society that those with the power to ruin/end lives have some constraints on their actions."
Yeah, but this way the constraints are all in the wrong place.
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That is one reason to always keep your cell phone security dialed up to insane cop-proof mode, you don't know what may be on there you don't know about, especially if you have recently bought.
Everytime I buy a new computer, I use a secure wiping tool to totally wipe the hard disk and then reinstall the operating system, becuase you do not know what the techs who put your computer toghether might have done with it before it got into your hands.
By wiping and reinstalling the OS as soon as I buy my computer, anything I don't know about is totally wiped out. And since I do like to go to Disneyland, which is in the "Constitution Free Zone", securely wiping my laptop and then reinstalling the operating system guarantees that anything I don't know about that could get me into trouble will never be found, even by the best foensic software.
All the asset forfetiture is primarily within the 100 mile Constitution Free Zone. This is just in case any LEO in all or parts of California, Arizona, New Mexico, Texas, Washington, Idaho, Montana, North Dakota, Wisconsin, Michigan, Ohio, New York, Pennsylvania, Vermont, New Hampshire, or Maine, decides to stop me and seize my electronics, they will never get anything useful out of my laptops, as police forensic software will not be able to recover anything I don't know about that could be used as evidence.
With malware doing who knows what in your computer, doing this before taking a road trip is something you need to do.
I do that before every time I travel anywhere in the Constitution Free Zone, just to be safe, as well as putting my cell phones on insane cop proof mode to render the contents inaccessible.
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Point of order: the Constitution Free Zone may well extend to every "port of entry", including international airports.
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"Nothing to hide, nothing to fear" was inspired by someone like this.
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Your "insane cop proof mode" is neither insane nor cop-proof.
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Seems weird
So if they executed a search warrant for someone's house and found a dead body so they searched the mobile phone and found evidence of drug dealing they wouldn't be able to charge them with drug dealing because they were looking for evidence of murder?
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Re: Seems weird
What seems to have shot them in the foot here was that the base warrant that everything else built upon was faulty, which made everything after that inadmissible, so in your dead body/drug dealing example it would be more like if the original warrant was to search the house in an attempt to find a blimp, something that you don't really expect to find in a house, and then they found the other stuff.
If the original justification is faulty then it would be a bad idea to allow anything found to be admissible as that would heavily encourage fishing expeditions as police came up with random excuses for searches in hopes of finding other incriminating stuff, which would be just a tad intrusive/bad.
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Re: Seems weird
No, but if they were executing a search warrant for a dead body in his house, they wouldn't be able to charge him for the child porn on a usb stick or the drugs in a (closed) storage tin. Beause neither the usb stick nor the tin could be hiding a dead body inside, a warrant based on probable cause that there is a dead body in the house is not sufficient to justify a search of either item. On the other hand, if the police opened a closet and found drugs sitting openly on a shelf, that would be perfectly valid evidence since a dead body could reasonably be hidden inside a closet.
The evidence is not being suppressed because it was found incidental to the stated purpose of the warrant, but because the stated purpose of the warrant never justified a search of the photos to begin with.
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This is just terrible police work. They could’ve kept the drug charges. They could’ve applied for a warrant for sex-related evidence based on the women’s panties and sex toys in conjunction with the ecstasy. But no, they had to overreach.
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As was pointed out in the article, while possession of those items is creepy it is not illegal to possess them.
Mere possession of those items does not rise to the level of probable cause of illegal activity.
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I don't think they thought he was a pedophile at all. They went on a fishing expedition, found the child porn, and invented the excuse after to justify the conviction. This would align with the initial warrant they went after him with.
And who knows. For all they knew, he could have a son / daughter, or be buying supplies / a gift for a relative? He could just so happen to be a transvestic fetishist (or trans), who likes to collect women's underwear.
It's easy to say in hindsight, now we know there was child porn on his phone. But, is it always that easy? Is it that obvious? Weird things appear when you deal with enough people.
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The warrants based on sex-related evidence would still have been faulty. It's not illegal for adults to own adult underwear, sex toys or candy.
If owning completely legal items was grounds for a search warrant, there would be no such thing as the fourth amendment.
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"They could’ve applied for a warrant for sex-related evidence based on the women’s panties and sex toys in conjunction with the ecstasy."
Imagine if the one they found was a free-lance underwear and adult toy salesman whose ownership of school supplies is because, well, he has children? Now you've got an innocent man charged as a pedophile and his career - and personal life - destroyed as a result.
What you need is context. The drugs are one thing, as possession is illegal, no matter how we might feel about that. I would argue that no one could ask the police not to check the man's official records further in order to find something suspicious enough to warrant knocking on a judge's door.
No, what is really freaky is the way a US warrant is limited, and the ways law enforcement must work around it.
Then again we're also at the point where it's an open question whether the criminals really are worse than the police in that nation...
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Re: Re:
It's really freaky because we have this silly little thing known as the fourth amendment that's supposed (yes, drug and way too many other exceptions not withstanding) to protect us from the government.
If the government wants to violate a constitutional right, they need to be severely limited in just how they are allowed to do so, lest it become a right in name only.
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Re: Re: Re:
"It's really freaky because we have this silly little thing known as the fourth amendment that's supposed (yes, drug and way too many other exceptions not withstanding) to protect us from the government."
That sounds like just another one of those "Only In America" problems. We who have Free Proof can not, by necessity, have plea bargains, sting operations, or the same discretionary power by prosecutors to pursue or drop cases at whim.
Meaning you don't train law enforcers to believe the execution of law is a subjective matter.
"If the government wants to violate a constitutional right, they need to be severely limited in just how they are allowed to do so, lest it become a right in name only."
Funny how most other countries appear to have solved that problem without their police force turning into the murderous gang which statistics suggest all too much of US law enforcement has turned out to be. You might ask George Floyd - and a few hundred others - about how well their right to life, liberty and the pursuit of happiness and prosperity has worked out for them under the current system.
It's pretty clear to me that a lot of the way you guys implemented your constitutional amendments are...really odd, given the spirit in which they were presumably written.
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The law limits those powers because cops can use them to violate civil rights. The price of having those limits far outweighs the price of not having them.
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"The law limits those powers because cops can use them to violate civil rights. The price of having those limits far outweighs the price of not having them."
Well yeah. It's just that the powers limited here are the wrong ones. Free Proof only means that any evidence is usable, irrespective of source. It still constrains police officers and in fact by necessity means police can not themselves engage in maneuvers to obtain proof illegally. So there instead go all those shady maneuvers US law enforcement resorts to all the time which has a lot of europeans wondering where the difference between the cop and the criminal is.
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That sounds like an unsupported conclusion. Let us consider.
The price of having limits is what we see here: convictions obtained through violations of constitutionally-protected rights may be set aside. If the defendant is a real problem, we will surely be alert and have him up more successfully next time.
The price of not having them (or not having them enforced) is things like George Floyd, or the Chicago Seven, or DWB stops such as Jonny Gammage, or the reeducation camps of Red China. I would even include Terry stops but people might differ on that.
I think Blackstone's ratio was in favor of ten guilty walking before one innocent being imprisoned. Have you a better suggestion? Because if not, I think I would prefer to lose a few marginal convictions and would deem it cheap as compared to the loss of the Fourth Amendment right to walk the streets without being roughed up by law enforcement.
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They're limited because otherwise cops could use even the flimsiest excuse to go on a fishing expedition just to see what they could find.
"Well, yes your honor, I did enter the house looking for a stolen car in the attached garage, but while I was in there, I just happened to look in the suspect's underwear drawer and found this small quantity of drugs. Oh, and I also found this $10,000 in cash hidden in a jar in a kitchen cabinet, which the suspect claimed he was saving for buying his daughter a car for her 16th birthday. Can we start the forfeiture proceedings now?"
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Re: Re: Re:
"They're limited because otherwise cops could use even the flimsiest excuse to go on a fishing expedition just to see what they could find."
And they aren't doing this already?
"Oh, and I also found this $10,000 in cash hidden in a jar in a kitchen cabinet, which the suspect claimed he was saving for buying his daughter a car for her 16th birthday. Can we start the forfeiture proceedings now?""
Looking at civil forfeiture the way it's already practiced I honestly see no difference between your example - which I'm sure was meant to be hypothetical - and factual reality already.
Pretty clear those "limits" are in the wrong place to stop any crooked cop from going on fishing expeditions at will anyway.
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The cops were stupid as hell here
That's correct, but the display they saw is consistent with traveling to sexually exploit children. Federal agents have been known to successfully use that to establish probable cause to arrest a suspect who was traveling to a known hot spot for trafficking.
It's incredibly stupid. If they were going to charge under 18USC, all they needed to do was show a federal judge that they found a setup consistent with a man traveling to exploit children and they'd like have gotten the warrant they needed right then and there.
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Re: The cops were stupid as hell here
Could you please cite the particular case where a federal agent has been able to secure such a warrant?
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Re: Re: The cops were stupid as hell here
I can't. I know people who work in law enforcement. One of them has done it a few times.
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I bet you have a girlfriend in Canada, too.
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Re: Re: Re: The cops were stupid as hell here
As has been repeatedly shown. Cops are more likely to lie about their workplace than almost any other profession.
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Re: The cops were stupid as hell here
Was he traveling to such a hotspot? What hotspots apply? Would such a warrant involve going through the photos, or just correspondence which might indicate that he's arranged to meet with a child?
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Re: Re: The cops were stupid as hell here
Use your imagination. There are some locales that are known hotspots for child exploitation where traveling as a single, white male with a box of goodies for kids and a box of sex toys is going to get you turned upside down by federal law enforcement on your way to the plane if they observe the contents of your luggage.
Let's just say that single, white men don't travel to those locales with such things to do the Lord's Work.
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Re: Re: Re: The cops were stupid as hell here
Is there evidence he was traveling to another country? If he was boarding a flight, there should be associated travel records mentioned in the story?
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Re: Re: Re: The cops were stupid as hell here
How about getting the border officers to report such incidences to the police? They would know if someone is catching a flight or not (and where they're going), and skin deep searches are a routine part of their jobs.
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Re: Re: Re: The cops were stupid as hell here
So, then in places were police had abused their authority means defense attorneys can ask that police testimony be considered suspect?
Although, we already have that with drug deals. going from any place where drugs bought to any place drugs sold is now suspicious. what lets the police seize cash from people.
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Re: The cops were stupid as hell here
Sex toys and women's underwear doesn't exactly scream setup for child exploitation with the possible exception that some of the toys were child proportioned sex dolls or something.
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Re: Re: The cops were stupid as hell here
It's common for active child sex offenders to offer gifts of school supplies, toys and candy to poor kids. The setup as described here would be consistent with that:
Individually, none of those things mean anything but the particular arrangement would arouse suspicion.
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Re: Re: Re: The cops were stupid as hell here
It's common for them to offer sex toys as gifts?
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Re: Re: Re: The cops were stupid as hell here
Maybe, but does that rise to the level necessary to secure a warrant? Suspicion is not evidence and evidence is required to acquire a warrant. Maybe they police should do their actual jobs and find some evidence first, before disrupting a potentially innocent person's life.
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Re: The cops were stupid as hell here
"Hot spots" are such nonsense. What cops can legally search you for is dependent on what they claim about an area? Sounds like the constitution-free zone.
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Why do they always stick illicit material like this on their cellphones? Are they that lazy?
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Someone proven to be a dangerous pedophile in all eyes except the laws because they weren't allowed to search his phone the way cops claim they need to be able to search people's phones (for all our safety) is a recipe for the future losing of more of all our privacy and personal liberties.
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Sorry,
Not people not relinquishing their rights (for their own safety, of course) will lead to people losing their rights?
What kind of logic is that?
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Because for the voters who don't read techdirt, and for anyone who wants to spin it as such this is proof that people not relinquishing their rights means seeing pedophiles hurting our kids and then allowing it. You and I know and another 0.whatever % of voters know it's actually just the police's fault, but we should also know we will be in the minority
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The most surprising part of this story to me is that they found 19,720 child pornography images on his phones and he was sentenced to only nine years. Didn't I read somewhere that each instance of possession carries a possible ten-year sentence?
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Did you miss the part where that evidence was thrown out due to a faulty search warrant? Because I’m pretty sure that was the whole point of the article.
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The evidence was thrown out on appeal. Before that appeal;
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Fair point. But, uh…yeah, I’m not entirely sure what happened there. You’d think that guy would’ve gotten a couple decades at least.
¯\_(ツ)_/¯
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