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Date: 09-20-2021
Case Style:
United States of America v. Brian Matthew Morton
Case Number: 19-10842
Judge: E. Grady Jolly
Court: United States Court of Appeals
for the Fifth Circuit
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense lawyer represented defendant with a child pornography charge.
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. 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. After arresting
Morton for drug possession, one of the officers, Texas Department of Public
Safety (DPS) Trooper Burt Blue, applied for warrants to search Morton’s
three cellphones that were found in the van. Trooper Blue’s affidavits1 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
1 The affidavits and warrants were identical to each other except for naming
different cellphones to be searched. The paragraph of the affidavits describing the objects
of the search reads:
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.
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3
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.
Relying on these affidavits, a judge issued warrants to search
Morton’s phones. 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.
In pretrial proceedings, Morton moved to suppress this pornographic
evidence. He argued that the affidavits in support of the first set of warrants
failed to establish probable cause to search for his additional criminal drug
activity. The government responded by stating that the warrants were
supported by probable cause and, if not, then the good faith exception to the
exclusionary rule—first announced by the Supreme Court in United States v.
Leon, 468 U.S. 897 (1984)—should apply. The district court ruled in favor
of the government, and Morton later pled guilty to the child pornography
charge while reserving his right to appeal the district court’s suppression
decision. He was sentenced to nine years in prison, and this appeal of the
suppression ruling followed.
II.
On appeal, when examining a district court’s ruling on a motion to
suppress, we review questions of law de novo and accept factual findings
unless they are clearly erroneous or influenced by an incorrect view of the
law. United States v. Gentry, 941 F.3d 767, 779 (5th Cir. 2019); United States
v. Fulton, 928 F.3d 429, 434 (5th Cir. 2019). We view the evidence in the
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4
light most favorable to the prevailing party. United States v. Ganzer, 922 F.3d
579, 583 (5th Cir. 2019). In reviewing a district court’s denial of a
suppression motion for evidence obtained pursuant to a search warrant, our
precedent usually applies a two-step test. United States v. Allen, 625 F.3d
830, 835 (5th Cir. 2010). First, we decide whether the good faith exception
should apply. Id. If the good faith exception applies, then no further inquiry
is required. Id. If the good faith exception does not apply, we proceed to a
second step of analysis, in which we review whether the issuing judge had a
substantial basis for determining that probable cause existed. Id.
The good faith exception to the suppression of evidence obtained in
violation of the Fourth Amendment arises when an officer’s reliance on a
defective search warrant is “objectively reasonable.” United States v. Sibley,
448 F.3d 754, 757 (5th Cir. 2006). In such a case, the evidence obtained from
the search “will not be excluded.” Id. This court has decided that the good
faith exception applies to most searches undertaken pursuant to a warrant
unless one of the four situations enumerated in Leon removes the warrant
from the exception’s protection. Leon, 468 U.S. at 923; see Franks v.
Delaware, 438 U.S. 154, 171 (1978). Only one of these “exceptions to the
good faith exception” is relevant here: Morton alleges that the warrant “so
lack[ed] indicia of probable cause” that the officers’ reliance on it was
“entirely unreasonable.” Leon, 468 U.S. at 923.
To determine if there were indicia of probable cause, the reviewing
court will usually be required to look at the affidavit supporting the warrant,
but, even so, all of the circumstances surrounding the warrant’s issuance may
be considered. United States v. Payne, 341 F.3d 393, 400 (5th Cir. 2003);
United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994). Affidavits must raise
a “fair probability” or a “substantial chance” that criminal evidence will be
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found in the place to be searched for there to be probable cause. Safford
Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371 (2009) (cleaned up).
Here, as suggested by this court’s precedent, we turn to Trooper
Blue’s affidavits supporting the search warrants. The affidavits seek
approval to search Morton’s contacts, call logs, text messages, and
photographs for evidence of his drug possession crimes. As the government
properly conceded at oral argument,2 separate probable cause is required to
search each of the categories of information found on the cellphones.
Although “[t]reating a cell phone as a container . . . is a bit strained,” the
Supreme Court has explained that cellphones do “collect[] in one place many
distinct types of information.” Riley v. California, 573 U.S. 373, 394, 397
(2014). And the Court’s opinion in Riley went to great lengths to explain the
range of possible types of information contained on cellphones.3
Riley made clear that these distinct types of information, often stored
in different components of the phone, should be analyzed separately. This
requirement isimposed because “a cell phone’s capacity allows even just one
2 Oral Argument at 27:28, United States v. Morton, No. 19-10842,
http://www.ca5.uscourts.gov/OralArgRecordings/19/19-10842_10-5-2020.mp3:
The Court: Do you say you’re entitled to everything inside that phone so
long as you can look at anything inside the phone?
The Government: No, your Honor.
The Court: Or do you need probable cause for each individual sort of
category of information that could be found there?
The Government: That’s correct.
3 See id. at 393 (emphasizing that the term “cellphone” is “misleading shorthand”
because cellphones are in fact minicomputers that also can serve as “cameras, video
players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps,
or newspapers”); id. at 394 (noting that “[e]ven the most basic phones” might hold
photographs, messages, a calendar, a phone book, “and so on”); id. at 396 (describing all
of the possible apps as a “range of tools for managing detailed information”).
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type of information to convey far more than previously possible.” Id. at 394.
Just by looking at one category of information—for example, “a thousand
photographs labeled with dates, locations, and descriptions” or “a record of
all [a defendant’s] communications . . . as would routinely be kept on a
phone”—“the sum of an individual’s private life can be reconstructed.”4 Id.
at 394–95. In short, Riley rejected the premise that permitting a search of all
content on a cellphone is “materially indistinguishable” from other types of
searches. Id. at 393. Absent unusual circumstances, probable cause is
required to search each category of content. Id. at 395 (stating that “certain
types of data” on cellphones are “qualitatively different” from other types);
id. at 400 (analyzing data from a phone’s call log feature separately); see also
Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (analyzing data from
a phone’s cell tower location signals separately).
This distinction dovetails with the Fourth Amendment’s imperative
that the “place to be searched” be “particularly describ[ed].” U.S. CONST.
amend. IV.; cf., e.g., United States v. Beaumont, 972 F.2d 553, 560 (5th Cir.
1992) (“General warrants [which lack particularity] have long been abhorred
in the jurisprudence of both England and the United States.”). Probable
cause and particularity are concomitant because “—at least under some
circumstances—the lack of a more specific description will make it apparent
that there has not been a sufficient showing to the magistrate that the
4 Moreover, the Supreme Court intimated in Riley that searching a phone may be
akin to searching a defendant’s house—if not even more invasive. Id. at 396–97 (noting
that a “cell phone search would typically expose to the government far more than the most
exhaustive search of a house” because a phone “not only contains in digital form many
sensitive records previously found in the home,” but it also “contains a broad array of
private information never found in a home in any form”) (emphases added); id. at 403
(comparing general searches of cellphones to the “general warrants and writs of assistance
. . . which allowed British officers to rummage through homes in an unrestrained search for
evidence of criminal activity” against which the Founders fought) (emphasis added).
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described items are to be found in a particular place.”5 WAYNE R.
LAFAVE, 2 SEARCH & SEIZURE § 4.5 (6th ed. 2020).
Here, this observation means that the facts as alleged in Trooper
Blue’s affidavits must raise a “fair probability” or a “substantial chance”
that evidence relevant to Morton’s crime—that is, simple drug possession—
will be found in each place to be searched: his contacts, his call logs, his text
messages, and his photographs. There must be a specific factual basis in the
affidavit that connects each cellphone feature to be searched to the drug
possession crimes with which Morton was initially charged.
III.
A.
The affidavits successfully establish probable cause to search
Morton’s contacts, call logs, and text messages for evidence of drug
possession. In attesting that probable cause exists, officers may rely on their
experience, training, and all the facts available to them. Ornelas v. United
States, 517 U.S. 690, 700 (1996); United States v. Escamilla, 852 F.3d 474, 481
5 This requirement is especially important in the context of searches of digital
devices that contain so much content. See, e.g., Adam M. Gershowitz, The Post-Riley Search
Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 VAND. L. REV. 585,
597–600 (2016); id. at 609 (noting that in drug cases, warrants frequently “authorize
searches for photos and videos [on phones] . . . for which there is typically no probable
cause”); Andrew D. Huynh, Note, What Comes After “Get A Warrant”: Balancing
Particularity and Practicality in Mobile Device Search Warrants Post-Riley, 101 CORNELL L.
REV. 187, 190 (2015) (“The Court's lengthy discussion about the amount of personal
information accessible on a modern mobile device suggests that a search warrant's
particularity may be the next subject for scrutiny.”); William Clark, Protecting the Privacies
of Digital Life: Riley v. California, the Fourth Amendment's Particularity Requirement, and
Search Protocols for Cell Phone Search Warrants, 56 B.C. L. REV. 1981, 1984 (2015) (“As
the U.S. Supreme Court held in Riley, to allow the police unguided review of the entire
contents of a cell phone when executing a search warrant would authorize the exact type of
general warrants that the Fourth Amendment forbids.”).
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(5th Cir. 2017); Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988). Here,
Trooper Blue relied on his fourteen years in law enforcement and eight years
as a “DRE-Drug Recognition Expert” to assert that suspects’ call logs often
show calls “arrang[ing] for the illicit receipt and delivery of controlled
substances”; stored numbers identify “suppliers of illicit narcotics”; and
text messages “may concern conversations” along these lines as well. Since
this is true of drug possession suspects in general, and Morton had been
found with drugs, Trooper Blue credibly alleges that there is a “fair
probability” that these features of Morton’s phone would contain similar
evidence of Morton’s drug possession charges.
These conclusions are supported by simple logic. To possess drugs,
one must have purchased them; contacts, call records, and text messages
could all easily harbor proof of this purchase. For example, text messages
could show a conversation with a seller haggling over the drugs’ cost or
arranging a location to meet for the exchange. Similarly, Morton could have
had his source of drugs listed in his contacts as “dealer” or some similar
name, and recent calls with such a person could show a recent purchase. The
affidavit makes all of these points. For this reason, we hold that there was
probable cause to search Morton’s contacts, call records, and text messages
for evidence relating to his illegal drug possession.
B.
But the 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. As we have said, officers are permitted
to rely on training and experience when attesting that probable cause exists,
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9
but they must not turn a blind eye to detailsthat do notsupport probable cause
for the particular crime. Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)
(explaining that officers may not “disregard facts tending to dissipate
probable cause”).
Here, Trooper Blue supplied two facts to provide probable cause to
search the images on Morton’s phones. First, Morton was found with less
than two ounces of marijuana, a pipe, and sixteen pills that Morton stated
were ecstasy. Second, based on Trooper Blue’s training and experience,
“criminals often take photographs of co-conspirators as well as illicit drugs
and currency derived from the sale of illicit drugs.” This background led
Trooper Blue to assert that “photograph images stored in the cellular
telephone may identify other co-conspirators and show images of illicit drugs and
currency derived from the sale of illicit drugs.” These photographs would, in
turn, be evidence of “other criminal activity . . . in furtherance of narcotics
trafficking” and Morton’s drug possession crimes. The search warrant is
thus expanded to seek information of an alleged narcotics trafficking
conspiracy based solely on Morton’s arrest for, and evidence of, simple drug
possession.6
The syllogism that Trooper Blue offers to gain access to Morton’s
photographs does not provide adequate grounds for the extensive search. In
6 In full, the sole paragraph in each affidavit purporting to provide probable cause
to search Morton’s photographs reads:
Affiant knows through training and experience that photographic images
taken on cellular telephones can be stored in the telephones [sic] memory
and retained for future viewing. Affiant also knows through training and
experience that criminals often take photographs of co-conspirators as well as
illicit drugs and currency derived from the sale of illicit drugs. Affiant believes
that photograph images stored in the cellular telephone may identify other
co-conspirators and show images of illicit drugs and currency derived from the
sale of illicit drugs.
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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 coconspirators; 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.
To begin, the quantity of drugs Morton possessed can best be
described as personal-use: a single small bag of marijuana and a few ecstasy
pills. Further, Morton did not have scales, weapons, or individual plastic
bags that are usually associated with those who sell drugs. It is also significant
that the officers arrested Morton for possession of marijuana and ecstasy but
not distribution of these drugs. Compare TEX. HEALTH & SAFETY CODE
§§ 481.121, 481.116 with id. §§ 481.120, 481.113.7
In sum, indications of drug
trafficking were lacking: no significant amount of drugs; paraphernalia for
personal use, not sale; and no large amounts of cash. Or precisely: there was
no evidence supporting drug trafficking.
Nevertheless, Trooper Blue relied on his knowledge of the behavior
of drug traffickers to support a search of Morton’s photos. Again, we
emphasize that the only times Morton’s photographs are mentioned in the
affidavits are in connection with statements about the behavior of drug
traffickers: that “criminals often take photographs of co-conspirators as well
7 Cf. Moreno v. State, 195 S.W.3d 321, 325–26 (Tex. App. 2006) (collecting cases
showing that proving “delivery” under Texas law requires the consideration of factors
including the quantity of contraband possessed, the presence and type of drug
paraphernalia, and whether the defendant possessed a large amount of cash);see also United
States v. Le, 512 F.3d 128, 137 (5th Cir. 2007) (Texas statutory references to “delivery” are
equivalent to “possession with intent to distribute”).
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as illicit drugs and currency derived from the sale of illicit drugs,” and that
“photograph images stored in the cellular telephone may identify other coconspirators and show images of illicit drugs and currency derived from the
sale of illicit drugs.” These suggestions relating to the behavior of drug
traffickers may well be true,8 but Trooper Blue cannot rely on these assertions
to search the photo contents of the cellphones of a suspect charged with
simple possession. Nor was Trooper Blue permitted, in his affidavit, to
ignore the evidence that negated probable cause as to trafficking.
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.9
8 See, e.g., United States v. Luna, 797 F. App’x 158, 160 (5th Cir. 2020) (drug dealers
sending photographs of guns, drugs, and cash to each other).
9 This result is suggested by both our own caselaw as well as the law of other
circuits. As Morton argued at oral argument (and the government could not cite a case to
the contrary), our precedent is void of any cases in which personal-use quantities of drugs
by themselves provide probable cause to search the photos on a defendant’s phone. Oral
Argument at 41:43, United States v. Morton, No. 19-10842,
http://www.ca5.uscourts.gov/OralArgRecordings/19/19-10842_10-5-2020.mp3 (“It still
doesn’t get you to the images. There’s not a single case, based just on training and
experience, plus cellphones, plus user-quantity drugs, that you get to get to everything in
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C.
Having demonstrated that the warrants to search the photographs
stored on Morton’s cellphones were not supported by probable cause, we
next turn to the question of whether the evidence produced by the search
may nevertheless be admitted based upon the good faith exception. To
resolve this question, we ask whether the officers’ good faith reliance on
these defective warrants was objectively reasonable. The district court’s
decision on the objective reasonableness of an officer’s reliance is a question
of law that is reviewed de novo. United States v. Jarman, 847 F.3d 259, 264
the phone.”). And a Tenth Circuit decision similarly addresses the issues here: after
arresting a defendant for drug crimes, officers applied for and received a warrant to search
his computers for files containing “names, telephone numbers, ledger receipts, addresses,
and other documentary evidence” of drug offenses. United States v. Carey, 172 F.3d 1268,
1270 (10th Cir. 1999). No drug-related evidence was found, but the officer undertaking the
search also viewed the defendant’s photographs and found child pornography. Id. at 1271.
The Tenth Circuit reversed the district court, holding that these photographs should be
suppressed. Id. at 1276.
In rejecting the government’s argument that the situation was similar to “an officer
having a warrant to search a file cabinet containing many drawers,” the panel held that this
was “not a case in which the officers had to open each file drawer before discovering its
contents.” Id. at 1274–75. Instead, the government “opened a drawer” marked
“photographs” for which they did not have probable cause. Id. Subsequent Tenth Circuit
cases have upheld the approach that Carey established, proscribing those searches with no
“limiting principle” while sanctioning those that “affirmatively limit the search to
evidence of . . . specific types of material” in the digital setting. United States v. Russian,
848 F.3d 1239, 1245 (10th Cir. 2017); United States v. Riccardi, 405 F.3d 852, 862 (10th Cir.
2005). Other circuits have reached similar results. United States v. Rosa, 626 F.3d 56, 62
(2d Cir. 2010) (concluding that a warrant to search a digital device “failed to describe with
particularity the evidence sought and, more specifically, to link that evidence to the
criminal activity supported by probable cause,” resulting in an impermissible “general
warrant”); United States v. Pitts, 173 F.3d 677 (8th Cir. 1999) (noting in an analogous
context outside the realm of digital searches that “when a warrant lists several locations to
be searched, a court can suppress evidence recovered at a location in the warrant for which
police lacked probable cause but admit evidence recovered at locations for which probable
cause was established”).
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(5th Cir. 2017). In reviewing whether an officer’s reliance is reasonable
under the good faith exception, we ask “whether a reasonably well-trained
officer would have known that the search was illegal” despite the
magistrate’s approval. United States v. Gant, 759 F.2d 484, 487–88 (5th Cir.
1985).
The Supreme Court has observed: “[M]any situations which confront
officers in the course of executing their duties are more or less ambiguous,
[and]room must be allowed for some mistakes on their part. But the mistakes
must be those of reasonable men, acting on facts leading sensibly to their
conclusions of probability.” Brinegar v. United States, 338 U.S. 160, 176
(1949). And further, “[m]ere affirmance of belief or suspicion is not
enough.” Nathanson v. United States, 290 U.S. 41, 47 (1933). The facts here
lead to the sensible conclusion that Morton was a consumer of drugs; the
facts do not lead to a sensible conclusion that Morton was a drug dealer.
Under these facts, reasonably well-trained officers would have been aware
that searching the digital images on Morton’s phone—allegedly for drug
trafficking-related evidence—was unsupported by probable cause, despite
the magistrate’s approval. Consequently, the search here does not receive
the protection of the good faith exception to the exclusionary rule.
IV.
However, the good faith exception, applicable to the officers, does not
end our analysis. As we have said, if the good faith exception does not save
the search, we move to a second step: whether the magistrate who issued the
warrant had a “substantial basis” for determining that probable cause to
search the cellphones existed. United States v. Allen, 625 F.3d 830, 835 (5th
Cir. 2010). While the good faith analysis focuses on what an objectively
reasonable police officer would have known to be permissible, this second
step focuses on the magistrate’s decision. The magistrate is permitted to
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draw reasonable inferences from the material he receives, and his
determination of probable cause is entitled to “great deference” by the
reviewing court in all “doubtful or marginal cases.” United States v. May,
819 F.2d 531, 535 (5th Cir. 1987); see 2 WAYNE R. LAFAVE ET AL.,
CRIMINAL PROCEDURE § 3.1(c) & n.78 (4th ed. 2019). At the same time,
“a reviewing court may properly conclude that, notwithstanding the
deference that magistrates deserve, the warrant was invalid because the
magistrate’s probable-cause determination reflected an improper analysis.”
United States v. Leon, 468 U.S. 897, 915 (1984).
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.
V.
Today, we have held that a reasonably well-trained officer would have
known that probable cause was lacking to search the photographs stored on
the defendant’s cellphones for evidence related to drug possession, which
was the only crime supporting a search. Moreover, we have held that any
additional assertions in the affidavits were too minimal and generalized to
provide probable cause for the magistrate to authorize the search of the
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15
photographs. Because the officers’ search of the stored photographs
pursuant to the first warrants was impermissible, obviously the use of that
information—which was the evidence asserted to secure the second set of
warrants—tainted the evidence obtained as a result of that second search,
making it the unconstitutional “fruit of the poisonous tree.” See, e.g., United
States v. Martinez, 486 F.3d 855, 864 (5th Cir. 2007). Therefore, the
evidence obtained as a result of the second set of warrants is inadmissible.
As we have earlier noted, Morton pled guilty while reserving the right
to appeal the district court’s order on the motion to suppress. This
conditional guilty plea, under Federal Rule of Criminal Procedure 11(a)(2),
allows a defendant to “reserv[e] in writing the right to have an appellate court
review an adverse determination of a specific pretrial motion.” FED. R.
CRIM. P. 11(a)(2). Furthermore, “a defendant who prevails on appeal may
then withdraw [his] plea.” Id
Outcome: Therefore, as to the photographs discovered
in the first search of Morton’s cellphones and the subsequently discovered
evidence from the second searches, we REVERSE the order of the district
court denying Morton’s motion to suppress, VACATE Morton’s
conviction and sentence so that he may withdraw his plea, and REMAND
this case to the district court for further proceedings not inconsistent with
this opinion.
REVERSED, VACATED, and REMANDED.
Plaintiff's Experts:
Defendant's Experts:
Comments: