Page 44 - March April 2021 TPA Journal

simple drug possession. and currency derived from the sale of illicit drugs.”
The syllogism that Trooper Blue offers to gain These suggestions relating to the behavior of drug
access to Morton’s photographs does not provide traffickers may well be true, but Trooper Blue
adequate grounds for the extensive search. In short, cannot rely on these assertions to search the photo
the syllogism is (1) Morton was found with contents of the cellphones of a suspect charged
personal-use quantities of drugs; and (2) drug with simple possession. Nor was Trooper Blue
dealers often take photos of drugs, cash, and permitted, in his affidavit, to ignore the evidence
coconspirators; it therefore follows that (3) the that negated probable cause as to trafficking.
photographs on Morton’s phones will provide Since it seems that no evidence supported
evidence of Morton’s relationship to drug probable cause to believe that Morton was dealing
trafficking. The fallacy of this syllogism is that it in drugs, the affidavit leaves us with only the
relies on a premise that cannot be established, allegations that (1) Morton was found with drugs
namely that Morton was dealing drugs. And here, so (2) it therefore follows that the photographs on
Trooper Blue disregarded key facts that show that Morton’s phones will provide evidence of
the evidence did not support probable cause that Morton’s crime of drug possession. With only this
Morton was a drug dealer. bare factual support that Morton possessed drugs,
To begin, the quantity of drugs Morton the affidavits contain nothing to link Morton’s
possessed can best be described as personal use: a marijuana and ecstasy with the photographs on his
single small bag of marijuana and a few ecstasy phones. The affidavits thus do not create a “fair
pills. Further, Morton did not have scales, probability” or a “substantial chance” that evidence
weapons, or individual plastic bags that are usually of the crime of drug possession will be found in the
associated with those who sell drugs. It is also photographs on Morton’s cellphones. Therefore,
significant that the officers arrested Morton for under these facts and based on the specific
possession of marijuana and ecstasy but not language in these affidavits, we hold that probable
distribution of these drugs. In sum, indications of cause was lacking to search Morton’s photographs
drug trafficking were lacking: no significant for proof of his illegal drug possession.
amount of drugs; paraphernalia for personal use, Having demonstrated that the warrants to
not sale; and no large amounts of cash. Or search the photographs stored on Morton’s
precisely: there was no evidence supporting drug cellphones were not supported by probable cause,
trafficking. we next turn to the question of whether the
Nevertheless, Trooper Blue relied on his evidence produced by the search may nevertheless
knowledge of the behavior of drug traffickers to be admitted based upon the good faith exception.
support a search of Morton’s photos. Again, we To resolve this question, we ask whether the
emphasize that the only times Morton’s officers’ good faith reliance on these defective
photographs are mentioned in the affidavits are in warrants was objectively reasonable.
connection with statements about the behavior of In reviewing whether an officer’s reliance is
drug traffickers: that “criminals often take reasonable under the good faith exception, we ask
photographs of co-conspirators as well as illicit “whether a reasonably well-trained officer would
drugs and currency derived from the sale of illicit have known that the search was illegal” despite the
drugs,” and that “photograph images stored in the magistrate’s approval.
cellular telephone may identify other The Supreme Court has observed: “[M]any
coconspirators and show images of illicit drugs situations which confront officers in the course of

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