Page 37 - TPA Journal March April 2025

pect and does believe that certain merchandise . . covery of drugs and his phones. They explain
. has otherwise been brought into the United where the marijuana and glass pipe were discov-
States contrary to law, and that said merchandise ered, the number (16) and location of the ecstasy
is now deposited and contained within” the defen- pills, and the affiant’s knowledge that cellphones
dant’s home. are used for receipt and delivery of illegal nar-
Another affidavit, this one supporting an arrest cotics. In support of the request to search for pho-
warrant, said only that, on a certain day, the defen- tos on the phones, the affiant explains he “knows
dant “did receive, conceal, etc., narcotic drugs, to- through training and experience that criminals
wit: heroin hydrochloride with knowledge of often take photographs of co-conspirators as well
unlawful importation” and that the affiant as illicit drugs and currency derived the sale of
“believes” certain people “are material witnesses illicit drugs.” Whatever one might conclude in
in relation to this charge.” Similarly, the allega- hindsight about the strength of the evidence it
tions supporting an arrest warrant were bare bones recounts, the affidavit is not “wholly conclusory.”
when the only information was that “defendants The affidavits, then, put all the relevant “facts and
did then and there unlawfully break and enter a circumstances” before the state judge, allowing
locked and sealed building.” Lastly, Houston him to “independently determine” if the notori-
police officers obtained a search warrant based ously fuzzy probable-cause standard had been
only on their statement that they “received reliable met. In other words, the judge made a judgment
information from a credible person and do believe call. Judgment calls in close cases are precisely
that [drugs] are being kept at the above described when the good-faith rule prevents suppression
premises for the purpose of sale and use contrary based on after-the-fact reassessment of a probable-
to the provisions of the law.” These affidavits do cause determination.
not detail any facts, they allege only conclusions. Although he invokes the bare-bones exception,
Also consider affidavits we have found to be bare- Morton does not confront the caselaw showing it
boned. In what we described as a “textbook exam- applies to affidavits that are wholly conclusory.
ple of a facially invalid, ‘barebones’ affidavit,” the He instead mostly challenges the probable-cause
officer listed just the defendant’s “biographical determination assessment itself, contending that
and contact information” and then stated “nothing the facts “merely establish[ed] probable cause for
more than the charged offense, accompanied by a a user-quantity drug possession arrest and not
conclusory statement” that the defendant commit- probable cause to search the entire communication
ted that crime. In another case, an officer obtained and photographic contents of [his] phones.” Drug
a warrant to search a motel room based on an affi- possessors, he points out, are less likely to use
davit stating nothing more than that the officer phones for drug activity than are dealers. He con-
“received information from a confidential infor- tends it would gut Riley if the linking of criminal
mant” who was known to him and who had “pro- activity to cellphones can be based on nothing
vided information in the past that ha[d] led to more than an officer’s experience that certain
arrest and convictions.” As these cases illustrate, offenders often use cellphones in connection with
bare-bones affidavits contain “wholly conclusory” their crimes. But this is not such a case. Morton
statements such as “the affiant ‘has cause to sus- had multiple phones in his car along with the
pect and does believe’ or ‘[has] received reliable drugs, which our court and others have recognized
information from a credible person and [does] can indicate that the phones are being used for
believe.’” criminal activity.
The affidavits used to search Morton’s phones are It is a close call whether the evidence recounted in
not of this genre; they have some meat on the the affidavits established probable cause for drug
bones. Each is over three pages and fully details trafficking as opposed to drug possession. And if
the facts surrounding Morton’s arrest and the dis- the evidence indicated only possession, then it is

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