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.
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