Lack of probable cause and overbroad search warrant; “Good-Faith Exception” and theory of abandonment rejected–Police lacked probable cause to seek and obtain overbroad warrant to search cell phone located in home: United States v. Ezra Griffith, _ F.3d _ (D.C. Circuit, No. 13-3061, Aug. 18, 2017).

Almost everybody owns a cell phone nowadays. But does that give the police license to obtain a warrant to search for and rummage through your home because they think you might own one and it might contain relevant evidence? In United States v. Griffith, a split panel of the D.C. Circuit undertook a thorough canvass of Fourth Amendment law and said they can’t do that, at least if the case doesn’t involve narcotics trafficking. The panel majority found error in the District Court’s denying a motion to suppress and vacated a jury conviction for unlawful possession of a firearm by a convicted felon. In so doing, the majority explored numerous legal doctrines which occur frequently in Fourth Amendment decisions.

The 28-page majority decision (Srinivasan & Pillard, JJ) noted that the underlying warrant authorized the officers to search for and seize all cell phones and other electronic devices in Griffith’s residence. The supporting affidavit offered almost no reason to suspect that Griffith owned a cell phone, or that any phone or other device containing incriminating information even would be found in his apartment. “In our view,” the majority stated, “the fact that most people now carry a cell phone was not enough to justify an intrusive search of a place lying at the center of the Fourth Amendment’s protection-a home-for any phone that Griffith might own.” (Slip Op. at 2).

Here, the police knew that Griffith was a member of a gang. Over a year-long investigation, much of which time Griffith was jailed on another matter, the officers uncovered tantalizing clues that he had driven a getaway vehicle used in a gang-related homicide. Upon Griffith’s release from jail, he moved into his girlfriend’s apartment. The police presented a 10-page affidavit to search her home. The affiant set forth a two-sentence conclusory assertion that gang members frequently stay in touch with one another via cell phones. The magistrate judge granted the application, which authorized the police to search any cell phones found in the apartment. (Slip Op. at 4-5).

And that’s where the real action, so to speak, began. When the gendarmes arrived and announced their presence, one of them saw an arm extend out a window and toss away a firearm. The officer then saw Griffith’s visage staring back at him. After entering the apartment, officers seized several cell phones and the weapon. Griffith was charged with possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). (Slip Op. at 5-6).

Griffith unsuccessfully challenged the warrant as facially invalid. He argued that there was no evidence that he had ever owned a cell phone or other electronic device, or that any such device would be found in the apartment. The Government responded that the warrant was supported by probable cause and that in any event the good-faith exception to the exclusionary rule (United States v. Leon, 468 U.S. 897 (1984)), applied. The government further contended that Griffith lacked standing to seek suppression of the weapon because he had voluntarily abandoned it when he tossed it out of the window. (Slip Op. at 6).

The Trial Judge determined that the abandonment theory would rise or fall with the legality of the government’s “entry into the apartment that prompted the tossing of the gun.” It rejected that claim, as well as the threshold issue of probable cause and decided that the good-faith exception permitted introduction of the evidence. (Slip Op. at 6-7). The panel majority concluded otherwise.

First, Judge Srinivasan observed that because Griffith was living with his girlfriend, he had a legitimate expectation of privacy in her home for purposes of raising a Fourth Amendment challenge. (Slip Op. at 7) (citing Minnesota v. Olson, 495 U.S. 91, 96-97 (1990)). Explaining that the government’s argument in support of probable cause to search the apartment rested on the prospect of finding one specific item there: a cell phone owned by Griffith, Judge Srinivasan tartly explained that “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.” (Slip Op. at 7). The rest, as they say, was history.

A. Courts of appeals must pay “‘great deference’ to the judge’s initial determination of probable cause,” but “a warrant application cannot rely merely on ‘conclusory statement[s].’” (Slip Op. at 8) (quoting Illinois v. Gates, 462 U.S. 213, 236, 239 (1983) (citations omitted)). Although “the lion’s share of the affidavit supporting the warrant application [wa]s devoted to establishing Griffith’s suspected involvement as the getaway driver in a homicide,” and “might have established probable cause to arrest Griffith for his participation in the crime,” the warrant application was for a search warrant, not an arrest warrant. Obtaining a search warrant, of course, obliges the Government to “do more than show probable cause to arrest. . . .” (Slip Op. at 8).

1. “Regardless of whether an individual is validly suspected of committing a crime, an application for a search warrant concerning his property or possessions must demonstrate cause to believe that ‘evidence is likely to be found at the place to be searched.’” (Slip Op. at 8-9) (quoting Groh v. Ramirez, 540 U.S. 551, 568 (2004)). And ‘“[t]here must, of course, be a nexus . . . between the Item to be seized and criminal behavior.’” (Slip Op. at 9) (quoting Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967) (internal citation omitted).

2. A home is at “‘the very core’” of the Fourth Amendment’s protections.” (Slip Op. at 9) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). Furthermore, “the scope of a permissible search depends on the specific spaces in which the object of the search might be found.” (Slip Op. at 9) (citing Maryland v. Garrison, 480 U.S. 79, 84-85 (1987)). In this specific case, Judge Srinivasan stated, the “[a]uthorization to search for an item fitting in the palm of a hand, like a cell phone, thus can entail an intrusive inspection of all corners of a home. (And here, as explained below, officers sought and obtained authorization to continue their search until they found every cell phone and electronic device in the apartment.) This case, in short, involves the prospect of an especially invasive search of an especially protected place.” (Slip Op. at 9).

3. Although the warrant application sought authorization to search for items other than a cell phone, listing for example, “any documents, newspaper articles, photographs, or other information relating to the crime, as well as “computers, tablets, and personal digital assistants,” the affiant had “suggested no reason whatsoever to expect the presence of [such] incriminating [items’ in the apartment.” (Slip Op. at 10). To be sure, nowadays cell phones are “‘such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,’” (Slip Op. at 10-11) (quoting Riley v. California, 134 S. Ct. 2473, 2484 (2014)). “But the affidavit in this case conveyed no reason to think that Griffith, in particular, owned a cell phone.” Moreover, the majority stressed, “[w]e are aware of no case, and the government identifies none, in which police obtained authorization to search a suspect’s home for a cell phone without any particularized information that he owned one.” (Slip Op. at 11).

4. Moreover, but of significance, “[t]o justify a search of the apartment to seize any cell phone owned by Griffith, moreover, police needed reason to think not only that he possessed a phone, but also that the device would be located in the home and would contain incriminating evidence about his suspected offense.” (Slip Op. at 11-12). But the application “set out no reason to believe the phone was ‘likely to be found at the place to be searched.’” (Slip Op. at 12) (quoting Groh, 540 U.S. at 568). Here, the majority pointed out, “the warrant in any event gave officers authority to search Griffith’s apartment for any cell phones without regard to his presence on the scene. Indeed, the police, not knowing whether Griffith owned a cell phone, sought and obtained authority to maintain their search until they found all cell phones in his girlfriend] Lewis’s apartment, so that they could later assess which (if any) belonged to Griffith.” (Slip Op. at 12) (emphasis original).

5. Instead of seeking an arrest warrant of Griffith, which would have authorized a search of items found incident to his arrest, the police “elected to seek license to conduct a full-scale search of his entire home based on the possibility that he owned a phone and that a phone found there might be his.” (Slip Op. at 13).

6. The majority rejected as “markedly different” the Government’s references to narcotics cases, where warrants authorizing searches of homes typically are upheld on the basis that probable cause to suspect a person of involvement in drug trafficking supports probable cause to believe drugs will be found in his residence. “‘[F]or the vast majority of drug dealers, the most convenient location to secure items is the home.’” (Slip Op. at 14) (quoting United States v. Cardoza, 713 F.3d 656, 661 (D.C. Cir. 2013) (internal citation omitted) and citing United States v. Washington, 775 F.3d 405, 409 (D.C. Cir. 2014)). Instead “[a]though a trafficker ordinarily would keep the bulk of his drugs away from his person and in the security of his home, a person typically would keep her cell phone with her.” (Slip Op. at 14).

7. Here, of course, Griffith was in the apartment he shared with Lewis. But that did not give the constabulary probable cause to search for his cell phone, even if there had been some reason to believe he had one on or near his person. “Because a cell phone, unlike drugs or other contraband, is not inherently illegal, there must be reason to believe that a phone may contain evidence of the crime.” (Slip Op. at 14). The problem here lay in the fact “the information on a cell phone can enable reconstruction of the ‘sum of an individual’s private life,’ Riley, 134 S. Ct. at 2489, [and] the police often might fairly infer that a suspect’s phone contains evidence of recent criminal activity, see id. at 2492, perhaps especially when, as here, multiple perpetrators may have coordinated the crime. But by the time police sought the warrant in this case, more than a year had elapsed since the shooting.” (Slip Op. at 14).

8. That concern, in turn, brought up the issue of staleness of the evidence set forth in the application. Probable cause is assessed “‘at the time that law enforcement applies for a warrant,’ such that ‘the freshness of the supporting evidence is critical.’” (Slip Op. at 14 (quoting Washington, 775 F.3d at 408). The majority identified several reasons here why there was no reason to believe such evidence existed, quite aside from the fact that nothing indicated that Griffith even owned a cell phone. One important consideration is “the likelihood that incriminating evidence continues to exist in the place to be searched—taking into account ‘the opportunities those involved in the crime would have had to remove or destroy [incriminating] items. . . .’” (Slip Op. at 15) (citing 2 Wayne R. LaFave, Search & Seizure § 3.7(a) (5th ed. 2016)). The majority found that consideration to “weigh[] against justifying a search of Lewis’s apartment on any expectation that it would yield a phone that belonged to Griffith and retained information about a crime he might have committed more than one year earlier (and for which he had long known he was a suspect).” (Slip Op. at 15).

9. The home is the “‘first among equals’ when it comes to the Fourth Amendment,” (Slip Op. at 16) (quoting Florida v. Jardines,133 S. Ct. 1409, 1414 (2013)), and finding “the existence of probable cause in this case, therefore, would verge on authorizing a search of a person’s home almost anytime there is probable cause to suspect her of a crime.” (Slip Op. at 15-16). That was an unacceptable result, Judges Srinivasan and Pillard reasoned.

B. Not only was there a lack of probable cause, “the warrant was also invalid for an additional reason: its overbreadth in allowing the seizure of all electronic devices found in the residence.” (Slip Op. at 16). Because “[t]he Fourth Amendment requires that warrants ‘particularly describ[e]’ the ‘things to be seized,’” “‘the search [must] be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.’” (Slip Op. at 16) (quoting Garrison, 480 U.S. at 84). “Consequently, a warrant with an ‘indiscriminate sweep’ is ‘constitutionally intolerable.’” (Slip Op. at 16) (quoting Stanford v. Texas, 379 U.S. 476, 486 (1965). A warrant will be invalidated when “‘overly broad.’” (Slip Op. at 16) (quoting United States v. Maxwell, 920 F.2d 1028, 1033-34 (D.C. Cir. 1990)).

1. Pointing out that “‘the requirement of particularity is closely tied to the requirement of probable cause,’” (Slip Op. at 17) (quoting 2 LaFave, Search & Seizure § 4.6(a), the panel noted that “[w]hen a warrant describes the objects of the search in unduly ‘general terms,’ it ‘raises the possibility that there does not exist a showing of probable cause to justify a search for them.’” (Slip Op. at 17 (quoting id. § 4.6(d)).

2. Here, not only did the affidavit lack probable cause to suspect that any cell phones or other electronic devices belonging to Griffith and containing incriminating information would be found in the apartment, “the warrant did not stop with any devices owned by Griffith, which already would have gone too far. It broadly authorized seizure of all cell phones and electronic devices, without regard to ownership. That expansive sweep far outstripped the police’s proffered justification for entering the home—viz., to recover any devices owned by Griffith.” (Slip Op. at 17) (emphasis original). What is more “the terms of the warrant allowed officers unfettered access to any electronic device in the apartment even if police knew the device belonged to someone other than Griffith.” (Id.) (emphasis original).

3. “Courts have allowed more latitude in connection with searches for contraband items like ‘weapons [or] narcotics.’” (Slip Op. at 17) (quoting Stanford, 379 U.S. at 486). “But the understanding is different when police seize ‘innocuous’ objects,” for “these circumstances call for special ‘care to assure [the search is] conducted in a manner that minimizes unwarranted intrusions upon privacy.’” (Slip Op. at 18) (quoting Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976) and citing 2 LaFave, Search & Seizure § 4.6(d)). Granted, the police may search such facially innocuous items “‘at least cursorily,’ to determine their relevance to the investigation.” (Slip Op. at 18) (quoting Andresen, 427 U.S. at 482 n.11). But “it is no answer to confer a blanket authorization to search for and seize all electronic devices. The warrant must be tailored to the justifications for entering the home. In this case, the warrant should have limited the scope of permissible seizure to devices owned by Griffith, or devices linked to the shooting.” (Slip Op. at 18).

C. The majority examined several other defenses that the Government made and found each unpersuasive.

1. First, the prosecution argued that the warrant should have been read in conjunction with the attached affidavit. The majority rejected that claim, stating that “[w]e read warrants by reference to an affidavit, however, only if the issuing judge uses ‘explicit words on the warrant’ indicating an intention to incorporate the affidavit’s contents and ‘thereby limit [the warrant’s] scope.’” (Slip Op. at 19) (quoting Maxwell, 920 F.2d at 1032)). Here, the signed warrant’s generalized reference to the detective’s affidavit was insufficient. (Slip Op. at 19-20).

2. The Government’s assurance that “it would have attempted to determine which of the seized devices in fact belonged to Griffith and would have sought a separate warrant to search the contents of those—and only those—devices” was rejected, because “[t]he warrant here included no express limitations on agents’ authority to examine any electronic devices seized. To the extent the officers showed restraint when executing the search, ‘this restraint was imposed by the agents themselves, not by a judicial officer.’” (Slip Op. at 20) (quoting Groh, 540 U.S. at 561). Moreover, “our holding does not turn on whether the police had the power to search the devices’ digital contents. The police lacked probable cause to seize all electronic devices in the home in the first place. The warrant was invalidly overbroad in enabling officers to do so.” (Slip Op. at 20) (emphasis original).

3. The majority found unpersuasive the Government’s procedural objection concerning whether Griffith properly preserved his challenge to the warrant’s particularity before the district court. It was sufficient, the majority explained that he offered “a species of the same legal theory he urged before the district court: the police lacked probable cause to seize all electronic devices in the residence.” (Slip Op. at 20-21) (citing United States v. Peyton, 745 F.3d 546, 551-52 (D.C. Cir. 2014).

D. But what of Leon’s “good-faith” exception? The majority found the Trial Judge’s reliance on that doctrine to have been mistaken.

1. The good-faith exception does not apply if a warrant is ‘“based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” Leon, 468 U.S. at 923. “[T]he 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.” (Slip Op. at 21-22).

2. Additionally the warrant was overbroad. “It was no solution to rely on a catchall provision authorizing seizure of every device they might happen to find in the house. Nothing in the affidavit or warrant supported—or could have supported—probable cause to seize any and all phones, tablets, computers, and other electronic devices in the apartment.” (Slip Op. at 22).

3. As to the dissent’s observation that the Circuit had applied Leon to uphold a search conducted under an otherwise overbroad warrant in United States v. Maxwell, 920 F.2d 1028, the majority responded: “[t]he inquiry is a contextual one, and courts have denied reliance on the good-faith exception when a warrant sweeps too broadly in describing the items subject to seizure.” (Slip Op. at 23) (citing United States v. Leary, 846 F.2d 592, 606-10 (10th Cir. 1988)). Moreover, the majority observed, in Maxwell, “we cast no doubt on the existence of probable cause to suspect the presence in the searched residence of at least some incriminating items encompassed by the warrant. Here, though, for the reasons explained, the affidavit failed to establish probable cause to believe that any cell phone (or other electronic device) containing incriminating information about Griffith’s suspected offense would be found in the apartment.” (Slip Op. at 23).

E. The Government advanced a final, back-up theory of abandonment; by tossing the weapon out the window, Griffith supposedly lacked standing to object to the weapon’s use in evidence. The majority disagreed.

1. While “[o]fficers may lawfully seize property that has been voluntarily abandoned,” (Slip Op. at 24) (citing United States v. Thomas, 864 F.2d 843, 845-46 (D.C. Cir. 1989)), “we do not treat an item as voluntarily abandoned when a person discards it ‘due to the unlawful activities of police officers, as where the disposal was prompted by police efforts to make an illegal arrest or search.’” (Slip Op. at 24) (quoting 2 Wayne R. LaFave et al., Criminal Procedure § 3.2(h) (4th ed. 2016)).

2. Both the D.C. Circuit and its sister circuits “likewise uniformly decline to deem evidence voluntarily abandoned when it is thrown away as the direct consequence of officers’ efforts to execute an unlawful search or seizure.” (Slip Op. at 24-25) (citing United States v. Stephens, 206 F.3d 914, 917 (9th Cir. 2000); United States v. Austin, 66 F.3d 1115, 1118 (10th Cir. 1995); United States v. Wood, 981 F.2d 536, 537, 541 (D.C. Cir. 1992)). Here, “Griffith tossed the gun out of the window only after officers had knocked on the door and announced a search warrant. The officers’ invocation of a warrant was tantamount to a pronouncement that Griffith had ‘no right to resist the search.’” (Slip Op. at 25 (quoting Bumper v. North Carolina, 391 U.S. 543, 550 (1968)).

3. The Government’s reliance on California v. Hodari D., 499 U.S. 621 (1991), where “a suspect ran from a pursuing officer instead of submitting to the latter’s show of authority calling for him to stop; and in the course of his flight, he dropped drugs he had been carrying,” was deemed inapposite. (Slip Op. at 25). “That case involved an officer’s efforts to seize a person on the street, not to search a person’s home. An ‘officer’s leave to gather information is sharply circumscribed when he steps off [public] thoroughfares and enters the Fourth Amendment’s protected areas. . . .’” (Slip Op. at 26) (quoting Jardines, 133 S. Ct. at 1415. Furthermore, “If a person submits to the officer’s show of authority, Hodari D. is inapplicable. Here, the officers, upon announcing their possession of a search warrant, proceeded to execute their search of the apartment without any resistance from Griffith or the other occupants.” (Slip Op. at 26) (citing Wood, 981 F.2d at 539-41).

4. The Government emphasized that Griffith had abandoned the gun before the officers entered the house—i.e., “while they stood at the door poised to enter after having announced they had a search warrant.” The majority saw “no basis for drawing such a rigid distinction between the officers’ announcement of a warrant and their ensuing entry.” (Slip Op. at 26).” Indeed, the Supreme Court has elsewhere explained that a person’s Fourth Amendment interests in his home ‘would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.”” (Slip Op. at 27) (quoting Jardines, 133 S. Ct. at 1414). “When an officer claims to have a warrant . . . she invokes authority unavailable to a private citizen. To conclude otherwise would allow the police to go door-to-door announcing search warrants in the hopes that occupants would respond by abandoning contraband or other evidence within the officers’ view.” (Slip Op. at 27).

Circuit Judge Brown may be retiring, but she didn’t exit this case without a spirited dissent in which she urged that the majority misapplied the Good-Faith Exception. (Slip Op. at 1-12) (Brown, J., dissenting). In her view, the “warrant in this case established probable cause for the search.” (Slip. Op. at 5) (dissent). Nor could she “find [any] discernible basis to justify the Court’s assertion that the warrant was ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” (Slip Op. at 7) (citing Majority Op. at 22). Most importantly, in her view, “While the Court is, admittedly, on firmer grounds when assessing the warrant’s shortfalls as to other electronic devices, this is an issue of breadth, not whether there was any indicia of probable cause, and this Court has never refused to apply the good faith exception because a warrant was overbroad.” (Slip Op. at 8-9) (dissent) (citing United States v. Maxwell, 920 F.2d 1028, 1034 (D.C. Cir. 1990)).

On another scorching day in D.C. in August, William Burgess, who argued the cause, hoisted the Jolly Roger and sailed off into the sunset with the prized reversal. He was supported on the brief by those Merrie Brigands in the Federal Defender’s Office: Chief Federal Public Defender A.J. Kramer and Assistant Federal Public Defenders Darren S. Gardner, Rosanna M. Taormina and Tony Axam, Jr.

– Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and arguing in the D.C. Circuit.

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