No good faith for search of electronic device, even after consent to preview device

Last month, the Sixth Circuit issued an important Fourth Amendment decision regarding searches of electronic devices, United States v. Lewis.

In 2019, Kentucky police opened an investigation after a tip from Homeland Security stated a particular IP address, connected to Edward Lewis, was "viewing child pornography." Two years later, agents knocked on Lewis's door.

At his house, Lewis consented to a search of his phone and laptop after officers asked to look at them. A forensic examiner then previewed the items, revealing suspected child pornography. At the same time, Lewis made incriminating statements about possibly viewing child pornography.

Officers then arrested Lewis, and Detective Anthony Gatson prepared a search warrant for his house and electronic devices. The warrant explained: "An HSI investigation identified Edward L Lewis . . . as a person of interest. HSI SA Minnick requested assistance with interviewing Mr. Lewis. Mr. Lewis was located at his residence at [address.] Mr. Lewis gave consent to search his laptop and cell phone. During [the] search it became apparent that Mr. Lewis had used his laptop to view images of child sexual exploitation."

Subsequent searches confirmed illegal pornography on the devices on the devices, leading to federal charges.

The Sixth Circuit found exclusion of the evidence appropriate. The court decided Lewis consented only to a preview of his devices, not seizure of the devices and full forensic examination. "None of the law-enforcement officers testified that Lewis was asked for his consent to seize his devices or to a perform a second, more invasive search of the devices at a state forensic laboratory, or that he voluntarily consented to those actions." Instead, "Detective Gatson and the other officers reached the limit of Lewis’s consent once they terminated the consent search, arrested Lewis, and left his home to obtain a search warrant." 

This decision thus presents a compelling example of the important distinction between officers looking at a device versus seizure and forensic exam of that device.

As to the search warrant, the district court thought the later search warrant showed officers acted in good faith, but the Sixth Circuit disagreed. First, the affidavit failed to establish probable cause because the detective "provided the state judge only one fact in support of the existence of probable cause: that a search of Mr. Lewis's laptop and cell phone had occurred." The court thus observed, quoting prior decisions, that "the combined boilerplate language and minimal information provide few, if any, particularized facts of an incriminating nature and little more than conclusory statements of affiant’s belief that probable cause existed regarding criminal activity." 

Moreover, no good faith applied because the warrant contained only a "bare-bones affidavit." The court explained that, although the affidavit "clearly expresses Detective Gatson’s belief that Lewis had committed a crime, but it does not provide a factual basis upon which a magistrate could independently reach that conclusion.

The Sixth Circuit thus decided: "Lewis consented to the initial search of his laptop and cell phone performed at his home, and the law-enforcement officers' account of that search and the preview generated during the search were validly obtained and are admissible under the Fourth Amendment. All other evidence taken from Lewis's electronic devices, by contrast, was obtained through searches and seizures that were not supported by a valid warrant or a valid claim to an exception to the warrant requirement. Accordingly, we REVERSE the district court's order denying Lewis’s motion to suppress, VACATE Lewis's conviction, and REMAND for further proceedings."