The Sixth Circuit agreed this week to publish United States v. Bass, No. 14-1387, originally issued as an unpublished decision. In the decision, the court affirms the denial of a motion to suppress a cell phone search. The government urged publication on the basis that “case law applying the contours of Fourth Amendment search and seizure law to cell phones in this circuit is scant.”
The government charged Bass with masterminding an identity-theft ring using credit-card account takeovers. Before Bass’s arrest, law enforcement uncovered “that phone numbers linked to Bass had been used in several account takeovers.” Police then seized Bass’s phone when they arrested him at his mother’s residence. Before gaining entry to the home, police observed him typing on the phone, and when Bass eventually opened the door, he “was arrested with his burgundy Kyocera Torino cell phone still in hand."
The officers obtained a warrant before searching the phone. The affidavit stated that police suspected Bass of crimes in which “cell phones were frequently used by conspirators to text or call each other during the times that the fraudulent activity was taking place,” and that Bass had used the phone at his arrest, “possibly attempting to alert other conspirators of [his] arrest.” The search warrant “authorized the search for any records of communication, indicia or use, ownership, or possession, including electronic calendars, address books, e-mails, and chat logs.” During the search, an officer turned on the phone and obtained its number, which matched with one used during account takeovers.
Bass argued that the search affidavit (1) lacked probable cause, (2) failed to show that his particular phone contained evidence, and (3) was overbroad.
The Sixth Circuit concluded that the affidavit showed a fair probability that the cell phone contained co-conspirator contacts and had sufficient detail to tie this phone to Bass’s offense, particularly since it identified the phone as obtained at his arrest. As for the overbreadth argument, the court decided that, even though the officers could not have known where within the phone, or in what format, the evidence would be, the scope of the warrant was reasonable given that criminals using modern electronic devices often seek to conceal evidence of their criminal activity. For support, the court primarily relied on United States v. Richard, 659 F.3d 527(6th Cir. 2011), which addressed computer searches.
The court also denied Bass a new trial based on the recantation of a witness’s testimony and rejected his challenge to his statutory maximum prison sentence of 264 months.