Page 41 - March April 2021 TPA Journal

In sum, because Kendrick failed to make “a based only on evidence of personal drug possession
sufficient preliminary showing that the affiant and an officer’s generalized allegations about the
officer obtained the warrant by recklessly including behavior of drug traffickers—not drug users. We
material falsehoods in a warrant application,” the hold that the officers’ affidavits do not provide
district court did not err in denying his request for probable cause to search the photographs stored on
a Franks hearing. Even if Kendrick had made a the defendant’s cellphones; and further, we hold
sufficient preliminary showing, he still would not that the good faith exception does not apply
have been entitled to relief. This is because, after because the officers’ reliance on the defective
excising the alleged falsehoods and omissions and warrants was objectively unreasonable. And while
inserting the improperly omitted context of the respecting the “great deference” that the presiding
May 12 and 17 calls and texts, the affidavit still judge is owed, we further hold that he did not have
included numerous other incriminating facts a substantial basis for his probable cause
regarding Kendrick and his involvement with determination with regard to the photographs. We
Jones, giving rise to probable cause. The district thus conclude that the digital images found on
court did not err in denying Kendrick’s request for Morton’s cellphones are inadmissible, and his
a Franks hearing. The district court’s denial of conviction is therefore VACATED. Accordingly,
Kendrick’s motion to suppress was warranted. the case is REMANDED for further proceedings
not inconsistent with this opinion.
(discussion of other claims on appeal is Morton was stopped for speeding near Palo
omitted.) Pinto, Texas. After the officers smelled marijuana,
he gave consent to search his van. Officers found
For the reasons set forth above, we AFFIRM sixteen ecstasy pills, one small bag of marijuana,
the district court’s motion to suppress finding; and a glass pipe. When, however, they discovered
Kendrick’s conspiracy to distribute conviction; and children’s school supplies, a lollipop, 14 sex toys,
the court’s sentencing calculation. and 100 pairs of women’s underwear in the vehicle,
they became more concerned that Morton might be
U.S. v. Kendrick, Jr., No. 19-30375, 5th Cir., a pedophile. After arresting Morton for drug
Nov. 03rd, 2020. 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
SEARCH & SEIZURE, cell phone search warrants purported to seek more evidence of
based on inadequate warrant disallowed. Good Morton’s criminal drug activity based on Trooper
Faith exception discussed. Blue’s training and experience—fourteen years in
law enforcement and eight years as a “DRE-Drug
In this appeal, we are asked to determine Recognition Expert”—as well as the drugs found
whether the good faith exception to the Fourth in Morton’s possession and his admission that the
Amendment’s exclusionary rule allows officers to drugs were in fact marijuana and ecstasy.
search the photographs on a defendant’s cellphones Relying on these affidavits, a judge issued
for evidence of drug possession, when the warrants to search Morton’s phones. While
affidavits supporting the search warrants were searching the phones’ photographs, Trooper Blue

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