Federal Corner: If You Have a Cell Phone Search Issue, Assume the Governor is Aware of Morton

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On February 2, 2021, a panel of the United States Court of Appeals for the Fifth Circuit held that an officer’s affidavit provided probable cause to search the contacts, call logs, and text messages on the defendant’s cell phone, but not to search for photographs on the cell phone; and, also, that the good faith exception did not apply to allow the admission of the photographs that were found on the cell phone.  United States v. Morton.1

A week or so later, I asked an AUSA whether he had read Morton.  He replied that he and the other lawyers in the office – and one of the magistrate judges in the division – had read it and were concerned about its implications.  If you have a case that involves the search of a cell phone, Morton is a “must read.”  It is another Leon2 case, but one in which the defendant prevailed.

Judge Jolly’s opinion reads, in part, as follows:

An Overview of the Opinion

In this appeal, we are asked to determine whether the good faith exception to the Fourth Amendment’s exclusionary rule allows officers to search the photographs on a defendant’s cellphones for evidence of drug possession, when the affidavits supporting the search warrants were based only on evidence of personal drug possession and an officer’s generalized allegations about the behavior of drug traffickers—not drug users. We hold that the officers’ affidavits do not provide probable cause to search the photographs stored on the defendant’s cellphones; and further, we hold that the good faith exception does not apply because the officers’ reliance on the defective warrants was objectively unreasonable. And while respecting the ‘great deference’ that the presiding judge is owed, we further hold that he did not have a substantial basis for his probable cause determination with regard to the photographs. We thus conclude that the digital images found on Morton’s cellphones are inadmissible, and his conviction is therefore VACATED. Accordingly, the case is REMANDED for further proceedings not inconsistent with this opinion.

The Facts in the Case

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 affidavits 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 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.

The Affidavits and the Warrants

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 … evidence 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.3 (emphasis in the opinion)

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.4 (emphasis in the opinion)

The Search and the Indictment That Followed

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.

The Motion to Suppress; the Guilty Plea; and, the Appeal

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, 104 S.Ct. 3405, 82 L.Ed.2d 677 (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.

Appellate Review of the Denial of a Motion to Suppress

… 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

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, 104 S.Ct. 3405; see Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Only one of these ‘exceptions to the good faith exception’ is relevant here: Morton alleges that the warrant ‘so lacked indicia of probable cause’ that the officers’ reliance on it was ‘entirely unreasonable.’ Leon, 468 U.S. at 923, 104 S.Ct. 3405.  (emphasis added.)

 Indicia of Probable Cause

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 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, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (cleaned up).

Trooper Blue’s Affidavits

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, separate probable cause is required to search each of the categories of information found on the cellphones. Although ‘treating 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, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). And the Court’s opinion in Riley went to great lengths to explain the range of possible types of information contained on cellphones. (emphasis added.)

Riley made clear that these distinct types of information, often stored in different components of the phone, should be analyzed separately. This requirement is imposed because ‘a cell phone’s capacity allows even just one type of information to convey far more than previously possible.’ … Absent unusual circumstances, probable cause is required to search each category of content. Id. at 395, 134 S.Ct. 2473 (stating that ‘certain types of data’ on cellphones are ‘qualitatively different’ from other types); id. at 400, 134 S.Ct. 2473 (analyzing data from a phone’s call log feature separately)… (emphasis added.)

This distinction dovetails with the Fourth Amendment’s imperative that the ‘place to be searched’ be ‘particularly described.’ U.S. CONST. amend. IV.; cf., e.g., United States v. Beaumont, 972 F.2d 553, 560 (5th Cir. 1992)…

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.  (emphasis added.)

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.

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, but they must not turn a blind eye to details that do not support probable cause for the particular crime. Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)…  (emphasis in the opinion)

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 thatphotograph 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.  (emphasis added.)

The Syllogism Fails to Provide Adequate Grounds For the Extensive Search

The syllogism that Trooper Blue offers to gain access to Morton’s photographs does not provide adequate grounds for the extensive search. In 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 co-conspirators; 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.  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.

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.  (emphasis added.)

The Good Faith Exception Does Not Save the Day

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. … 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 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.

The Magistrate Did Not Have a Substantial Basis for Determining That Probable Cause to Search the Cell Phone Existed

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 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).

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. (emphasis added.)

What the Court Has Said

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 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.  (emphasis added.)

My Thoughts

  • Any analysis of a cell phone search issue should begin with a review of Riley and, now, Morton
  • Any cell phone search can include looking at contacts, cell logs, text messages and photographs.
  • The affidavit prepared by the individual seeking a search warrant for a cell phone, absent unusual circumstances, must show probable cause for searching for each of these distinct types of information.
  • As Judge Jolly noted, “…we ask whether the officer’s good faith reliance on these defective warrants was objectively reasonable… 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.”  As criminal defense lawyers, we should like this question.  The Government does not.

Footnotes

  1. 984 F.3d 421 (5th Cir. 2021) [Panel:  Circuit Judges Jolly, Southwick and Wilson.  (Opinion by Jolly)]
  2. 104 S.Ct. 3405 (1984)
  3. From footnote 1 of the opinion
  4. From footnote 6 of the opinion
TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

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