Divided opinion upholds cell phone search

 

In a divided opinion, the Sixth Circuit upheld an illegal warrant search of two cell phones based on the Leon good faith exception.

Officers arrested Fharis Smith and seized his two cell phones. They received a search warrant for the cell phones based on an affidavit that included the following information: a known source who requested anonymity, and several anonymous sources, stated that Mr. Smith and another man were involved in a shooting; someone at the shooting may have sustained a gun-shot wound and the other named man was found with a wound; Mr. Smith was arrested in possession of a firearm; and in the officer’s experience, people often plan and undertake criminal activity using their cell phones.

Mr. Smith argued that the affidavit lacked probable cause because it did not contain sufficient corroboration for the known-but-unnamed and anonymous informants’ statements, and that it did not provide a nexus between his cell phones and the shooting.

The lead opinion, authored by Judge Guy, strongly suggested that the affidavit provided sufficient corroboration and nexus but ultimately declined to decide whether the warrant had probable cause. Instead, the opinion concluded that either way, the search qualified for the good faith exception because there was no binding precedent dictating that the warrant violated the Fourth Amendment.

Judges Clay and Moore each wrote separately. They agreed that the affidavit did not provide probable cause, making that the majority holding. Judge Clay found that the affidavit failed to show the veracity of the tipster’s statements because it did not note their past reliability, their personal knowledge, or show officer’s corroboration. As for the nexus, Judge Clay wrote that it was clearly lacking: simply alleging that people regularly use phones in the planning and commission of crime was insufficient. United States v. Bass was distinguishable, the concurrence wrote, because its affidavit specifically alleged that the defendant used cell phones to communicate with co-defendants. Judge Clay would have found that the Leon good faith exception did not save the warrant.

Judge Moore joined in the portions of Judge Clay’s opinion regarding the illegality of the warrant, but ultimately agreed with Judge Guy that the Leon good faith exception applied.