Page 31 - SEPT OCTOBER 2019_PJ - Final_Neat

warrant suggesting that anything similar to We applied the following test to determine
computers or even electronics was to be seized. whether the invalid seizure of the suspects while
Moreover, the officer in this case was a veteran of evidentiary justification for a warrant was
the Galveston Police Department’s narcotics unit, developed would nonetheless allow the
and he indicated at the suppression hearing that he introduction of evidence that was later obtained:
knew cellphones are used in the drug trade.
(1) the prior law enforcement conduct that
Though a ledger can serve one of the myriad
uncovered evidence used in the affidavit for the
purposes of a cellphone, we do not extend the
warrant must be “close enough to the line of
concept of “functional equivalency” to items so
validity” that an objectively reasonable officer
different, particularly one as specific,
preparing the affidavit or executing the warrant
distinguishable, and anticipatable as a cellphone.
would believe that the information supporting the
We now examine an exception to the exclusionary warrant was not tainted by unconstitutional
rule that nonetheless allows the introduction of the conduct, and (2) the resulting search warrant must
evidence from the phone. have been sought and executed by a law
enforcement officer in good faith.
B. Good faith
This same approach can be applied when, as here,
An exception for good faith may allow the
the initial seizure of an object was without
introduction of evidence unlawfully obtained
justification, but a later-obtained warrant led to the
“[w]hen police act under a warrant that is invalid
discovery of incriminating evidence.
for lack of probable cause.” Herring v. United
States, 555 U.S. 135, 142 (2009). Here, of course, We have already discussed the events that
we have held the initial seizure of the phone to be followed the seizure of the cellphone. We
invalid because, regardless of probable cause, the conclude that viewed objectively, an FBI agent
phone was not covered by the warrant. who obtained a search warrant in these
circumstances would not have had reason to
To constitute good faith, the “executing officer’s
believe the seizure and continued possession of
reliance on the [deficient] warrant [must be]
the cellphone by the Galveston police were
objectively reasonable and made in good faith.”
unlawful. We so conclude because the question of
The Government argues the FBI agent’s reliance
whether the warrant applied to the cellphone does
on the federal search warrant meets these
not lead to an easy negative answer, though that is
requirements. Fulton argues we should the good
the one we have given. Consequently, the seizure
faith exception should not apply “to situations
of the cellphone was “close enough to the line of
where law enforcement unreasonably delays in
validity” to permit the officer to prepare the
obtaining a search warrant.” The district court
second warrant that led to the search of the
refused to consider this exception because it held
cellphone. The federal search warrant was “sought
the phone and its contents to be admissible on
and executed by a law enforcement officer in good
other grounds.
faith.”
In Massi, law enforcement officers prolonged a
The cellphone evidence obtained was properly
proper investigatory stop based on reasonable
admitted.
suspicion well beyond the time permitted. The
officers detained the suspects for several hours AFFIRMED.
“until evidence could be corroborated, an affidavit
th
th
prepared, and the search warrant obtained.” U. S. v. Fulton, Sr., 5 Circuit, June 27 , 2019.

Sept./Oct. 2019 www.texaspoliceassociation.com • 866-997-8282 27