United States v. Morton

46 F.4th 331

UNITED STATES of America, Plaintiff—Appellee,

v.Brian Matthew MORTON, Defendant—Appellant.

No. 19-10842

United States Court of Appeals, Fifth Circuit.

FILED August 22, 2022

Amber Michelle Grand, Attorney, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX, for Plaintiff-Appellee.

Jessica Graf, Federal Public Defender's Office Northern District of Texas, Dallas, TX, for Defendant-Appellant.

Charles Baruch, Johnston Tobey Baruch, P.C., Dallas, TX, for Amicus Curiae Upturn, Incorporated.

Jennifer Lynch, Electronic Frontier Foundation, San Francisco, CA, for Amici Curiae Electronic Frontier Foundation, American Civil Liberties Union, Electronic Privacy Information Center.

Before Richman, Chief Judge, and Jolly, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham and Wilson, Circuit Judges.^*

Gregg Costa, Circuit Judge, joined by Richman, Chief Judge, and Jones, Smith, Stewart, Southwick, Haynes, Ho, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges:

State troopers arrested Brian Morton after finding drugs in his car during a traffic stop. Morton also had three cellphones in the car. A state judge later signed warrants authorizing searches of the phones for evidence of drug crime. The warrants allowed law enforcement to look at photos on the phones. When doing so, troopers discovered photos that appeared to be child pornography. This discovery led to a second set of search warrants. The ensuing forensic examination of the phones revealed almost 20,000 images of child pornography. This federal prosecution for receipt of child pornography followed.

Even though search warrants authorized everything law enforcement did when searching the cell phones, Morton argues the evidence discovered during those searches should be suppressed. We disagree because law enforcement is usually entitled to rely on warrants, and none of the exceptions that undermine good-faith reliance on a judge's authorization applies.

I

Shortly after midnight, state trooper Burt Blue pulled over 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."

A state district judge concluded that probable cause existed for the searches and signed the three warrants. Each warrant allowed troopers to search for various items on the phones including "photographs, digital images, or multimedia files in furtherance of narcotics trafficking or possession."

While searching the phones, Blue and a Department of Public Safety agent saw images they believed were child pornography. They stopped searching and sought new warrants seeking evidence of child pornography. The same state district judge issued the new warrants. The forensic search of the phones that followed located 19,270 images of child pornography on the three phones.

A federal grand jury charged Morton with receipt of child pornography. Morton moved to suppress the pornographic images found on the phones. He argued that probable cause did not support the initial warrants allowing the phone searches. The good-faith doctrine did not apply, he continued, because the affidavits were too "general in nature" to tie the phones to drug activity. He also briefly contended that the search of the phone for drug evidence was pretextual because the troopers were really concerned that Morton might have committed sex crimes.

The district court refused to suppress the evidence. It concluded that the good-faith exception to the suppression rule applied.

After losing his suppression motion, Morton entered a conditional guilty plea that allowed him to challenge the searches on appeal.

Morton's appeal initially succeeded. A panel of our court concluded that, although the "affidavits successfully establish probable cause to search Morton's contacts, call logs, and text messages for evidence of drug possession," United States v. Morton , 984 F.3d 421, 427 (5th Cir. 2021), they do not establish probable cause "that the photographs on Morton's phones would contain evidence pertinent to [that] crime," id. at 428. The panel also held that the good-faith exception did not apply because reasonable officers should "have been aware that searching the digital images on Morton's phone—allegedly for drug-trafficking-related evidence—was unsupported by probable cause." Id. at 430.

Our full court vacated that decision and agreed to hear this case en banc. See United States v. Morton , 996 F.3d 754 (5th Cir. 2021).

II

Riley v. California , one of the recent Supreme Court cases applying the Fourth Amendment to modern technology, held that the search of a cellphone incident to arrest requires a warrant. 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). Morton and supporting amici view this case as a follow-on that allows us to flesh out when probable cause exists to believe that certain applications on a cellphone contain incriminating evidence. They argue 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.

Despite the invitation to treat this as another difficult case addressing how "the degree of privacy secured to citizens by the Fourth Amendment" is affected "by the advance of modern technology," Kyllo v. United States , 533 U.S. 27, 33–34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), 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, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).¹

The good-faith rule flows from two central features of modern Fourth Amendment jurisprudence: the warrant requirement and the suppression remedy. The Supreme Court has held that a warrant is generally required for certain searches, most notably searches of the home and most recently searches of cellphones incident to arrest. See Riley , 573 U.S. at 403, 134 S.Ct. 2473 ; Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (noting that "searches and seizures inside a home without a warrant are presumptively unreasonable" (internal quotation omitted)). Behind the warrant requirement is the idea that the "inferences which reasonable men draw from evidence" to decide if probable cause exists should "be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States , 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (Jackson, J.). Although obtaining a warrant from that neutral judge may burden law enforcement before it conducts the search, the police obtain a benefit after the search. When a court reviews an after-the-fact challenge to the search, "the resolution of doubtful or marginal cases ... should be largely determined by the preference to be accorded to warrants." United States v. Ventresca , 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). As a result, "[s]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness." Leon , 468 U.S. at 922, 104 S.Ct. 3405 (quoting Illinois v. Gates , 462 U.S. 213, 267, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (White, J., concurring in judgment)).

To this unwillingness to second guess the magistrate who authorized the warrant, the exclusionary rule adds another component. As a judicially-created remedy rather than a constitutional requirement, the exclusionary rule is justified by the deterrent effect of suppressing evidence when it was obtained unlawfully. Id. at 906, 104 S.Ct. 3405. A key consideration in deciding when suppression will deter is whether "law enforcement officers have acted in objective good faith." Id. at 908, 104 S.Ct. 3405. The need to punish police conduct and thus deter future violations via suppression "assumes that the police have engaged in willful, or at the very least negligent, conduct." Id. at 919, 104 S.Ct. 3405 (quoting United States v. Peltier , 422 U.S. 531, 539, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975) ). The exclusionary rule is not aimed at "punish[ing] the errors of judges and magistrates" who issue warrants. Id. at 916, 104 S.Ct. 3405.

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...