From a decision by Magistrate Judge Zia Faruqui (D.D.C.) in In re: Search of One Device and Two Individuals (decided last month but just released Tuesday):
The videos [of the arrest] showed the defendant and [Redacted] on top of each other, falling down the stairs while being tackled by police officers. While they all were tumbling down, a gun fell from their area. Defendant’s [Redacted] exclaimed right away that the gun was [Redacted]. The gun was in fact registered to [Redacted] and [Redacted] had a license to carry it.
The defendant was prosecuted on the theory that he was the one possessing the gun, which would be a crime because the defendant (but not the man he was fighting, whose gun this was) was a felon. Among other things, the court rejected the request for a warrant to search defendant’s phone:
The affidavit here does not “demonstrate that [[Redacted]] was engaged in [illegally possessing a firearm] and keeping [evidence of that] in his [phone].” “Here, there is no evidence that [[Redacted]]” took pictures on his phone of any firearms, let alone the one for which he is charged of a crime. Indeed, there was no pre-arrest investigation at all. The universe of information to support the government’s charges and this search is limited to what happened in the few seconds when law enforcement tackled [Redacted] and [Redacted] in the stairwell of [Redacted] home.
Lacking facts and evidence specific to [Redacted], the government falls back on “boilerplate language” that “provide[s] few, if any, particularized facts of an incriminating nature [specific to the defendant’s phone] and little more than conclusory statements of affiant’s belief that probable cause existed regarding [evidence on every defendant’s phone].” Specifically, the government states:
- Your affiant knows that cellphones, like the TARGET DEVICE, are relevant to firearms offenses like the TARGET OFFENSE. Specifically, people who possess firearms usually like to take pictures of themselves with firearms to prove ownership or possession of a particular firearm to their friends. They will use, for example, a cellphone camera to take photos of firearms or themselves holding a firearm, as well as photographing other criminal activity that they may be involved in. Moreover, cellphones often contain communications relating to the acquisition of firearms by those who cannot possess firearms legally, including the transmission of photographs of firearms available for purchase with accompanying price information. Indeed, in this case, [Redacted] was barred from legally purchasing a firearm due to [Redacted] prior felony conviction. It is therefore likely that [Redacted] communicated with [Redacted] regarding [Redacted] acquisition of the firearm. Such communications are typically done by chat or text.
- Further, your affiant knows that individuals who possess firearm often will use their phone to take photos showing off the firearm that they later post to social media. Although the photos are later posted on social media, the original photo remains on the cellphone. Given how ubiquitous social media is, including with those who possess firearms, it is likely that the DEVICE contains evidence of the TARGET OFFENSE in the form of photos of the firearm.
- Your affiant knows that cellphones contain valuable information and evidence relating to the TARGET OFFENSE. Such information consists of, but is not limited to: call logs, phone books, photographs, voice mail messages, text messages, images and video, Global Positioning System data, and any other stored electronic data. This information can: (i) reflect the commission of the TARGET OFFENSE; (ii) reflect the ownership and use of the cellphone by persons involved in the commission of the TARGET OFFENSE; and (iii) document or contain evidence of the obtaining, secreting, transfer, expenditure and/or the concealment of the firearm relating to the TARGET OFFENSE.
There is no need to take this to a logical extreme to see the limitless power these three paragraphs create for police. With these three paragraphs, the government seeks to fiat automatic probable cause which would justify the search of every phone in every [felon-in-possession] investigation. But why stop there? Surely, law enforcement’s experience is that many criminals—like most everyone—capture everything they do on their phone. By this sleight of hand, every criminal violation justifies a search of a phone for videos, photos, notes, etc. This unbound police power is disturbing. And it ignores that “a central aim of the Framers was ‘to place obstacles in the way of a too permeating police surveillance.'”
Moreover, the government’s request is a bad remix to an already rejected song. In Griffith, Judge Srinivasan stated:
In view of the limited likelihood that any cell phone discovered in the apartment would contain incriminating evidence of Griffith’s suspected crime, the government’s argument in favor of probable cause essentially falls back on our accepting the following proposition: because nearly everyone now carries a cell phone, and because a phone frequently contains all sorts of information about the owner’s daily activities, a person’s suspected involvement in a crime ordinarily justifies searching her home for any cell phones, regardless of whether there is any indication that she in fact owns one. Finding the existence of probable cause in this case, therefore, would verge on authorizing a search of a person’s home almost anytime there is probable cause to suspect her of a crime. We cannot accept that proposition….
The government falls back on “training and experience” to cash their blank check for automatic phone searches…. But the extent of this affiant’s training and experience could not be more opaque. The affiant merely states:
- I am a Special Agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) and have served in that capacity since August 2022. I am currently assigned to the ATF’s Washington Field Division’s Group III. In that capacity, I am tasked with investigating violations of federal firearms, explosives, and arson laws, as well as other offenses enumerated in Title 18, Title 21, and Title 26 of the United States Code. My training includes successful completion of the Criminal Investigator Training Program, instructed by the Federal Law Enforcement Training Center (“FLETC”), and Special Agent Basic Training, instructed by the ATF National Academy, both located at FLETC in Glynco, Georgia.
- Additionally, I was previously a sworn federal police officer with the United States Capitol Police (“USCP”) in Washington, D.C., from September 2018 until August 2022, and a sworn police officer with Bowie City Police Department, Prince George’s County, MD from April 2016 until September 2018. I successfully completed the Uniformed Police Training Academy located at FLETC in Glynco, Georgia, in 2018; the USCP Police Academy located at FLETC in Cheltenham, Maryland, in 2019; and the Prince George’s County Police Department Academy located in Upper Marlboro, Maryland, in 2016.
- I have received specialized training in the investigation of local, state, and federal crimes involving the trafficking of firearms and controlled substances. This includes training on the exploitation of data stored on electronic devices and information stored on cloud-based services for the purpose of criminal investigations.
So many questions:
– What was the nature of these trainings?
– Who taught the trainings? Were they certified? By whom? What was done to ensure there was not a bias in favor of law enforcement training law enforcement that evidence is always in a phone, thereby manufacturing a basis to always search phones?
– What was the science underpinning the training materials? Was anything peer-reviewed?
– Have there been changes in the training in the past several years since receiving them?
– How much of the training was specific to felon in possession cases? If none, why is that training relevant?
– What did the training say about the connection between arrest-generated possessory gun cases and cell phone usage?
The list goes on. And on.
Worse yet, there is nothing detailing what the affiant’s actual experience is…. [T]he Court has no information on approximately how many felon-in-possession cases the affiant has investigated. And of those, how many times there were or were not photos of the firearm in question on a phone. These “alleged success rates [ ] would [be] material to the issuing judge’s probable cause analysis.” Moreover, the value of the affiant’s stated experience here is low, as it is largely based on common experiences held by all: that people use cell phones to take lots of pictures….
Ultimately, six paragraphs totaling 1.5 pages on training and experience is insufficient. This is particularly true in the context of a possessory offense with no co-conspirators and where the search is of a phone….
In over four years of being a Magistrate Judge, I have made over 1,000 probable cause findings in search warrants. Not once have I rejected a warrant. Until now.
The court’s credibility is based on a belief in its neutrality. But how can a court that never says “no” be neutral?
