Picture This: Fifth Circuit Clarifies Rules for Searching Cell Phone Photos

CRIMINAL COURT NEWS

BY DAN DWORIN

In an unusually favorable ruling for the defense, the Fifth Circuit Court of Appeals recently held that a search warrant affidavit with the standard verbiage about drug dealers’ use of their phones was insufficient to support the search of photographs on a phone seized from a suspect who possessed only personal-use quantities of drugs. United States v. Morton, 981 F.3d 421 (5th Cir. 2021).

The case arose out of a traffic stop, in which a DPS trooper pulled Brian Morton over for speeding near Palo Pinto, Texas. The trooper gained Morton’s consent to search the car after smelling marijuana. Inside the car, the trooper found sixteen ecstacy pills, one small bag of marijuana, and a glass pipe. The trooper also found children’s school supplies, a lollipop, and 100 pairs of women’s underwear. The trooper arrested Morton for drug possession, but the arresting officers were also concerned that Morton might be a pedophile based on the other evidence.

The case illustrates that the courts… consider cell phones as being similar to containers that hold lots of different things.

The DPS trooper drafted a search warrant affidavit, in which he articulated his training, experience, and knowledge of the activities of drug dealers. The affidavit did not mention anything about the concerns raised by the other evidence. Part of the affidavit stated that drug dealers often have photographs of drugs, currency, and other evidence of their drug dealing on their phones. For this reason, the warrant granted permission to search the photos on Morton’s phone.

No evidence of drug dealing was found, but over 19,000 images of child pornography were recovered after the phone was searched. Morton moved to suppress the evidence, but the trial court denied the motion. On appeal, the Fifth Circuit held that the drug quantities Morton possessed did not support a finding that Morton was dealing drugs. Therefore, the language in the affidavit concerning the normal activities of drug dealers was inapplicable to Morton. The court held that a search of Morton’s text messages or other communications was reasonable, since such a search could help prove that Morton knowingly possessed the drugs found in his car. The court held, however, that the search of his photos was not reasonable in relation to activities of drug dealers. Consequently, the evidence of child pornography should have been suppressed.

The case illustrates that the courts, following the United States Supreme Court precedent articulated in Riley v. California, consider cell phones as being similar to containers that hold lots of different things. Establishing probable cause to believe that each of the various things (communications, location data, photos, etc.) sought to be searched may contain evidence of a crime is crucial. Most surprisingly, the court also held that the federal “good-faith exception” did not save the search, as the court found that the officer’s reliance on the defective search warrant was not “objectively reasonable.” AL

Footnote

1. 573 U.S. 373 (2014).

Dan Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.