Page 38 - TPA Journal March April 2025

another close call whether there was probable the focus on the entirety of the affidavit as Cherna
cause to believe that evidence of drug possession does is the traditional bare-bones inquiry, and con-
would be found on the phones. But as we have sistent with the ultimate question whether an offi-
emphasized, on close calls second guessing the cer would know the affidavit is “so lacking in
issuing judge is not a basis for excluding evidence. probable cause as to render belief in its existence
Viewed in their entirety, the affidavits supporting unreasonable” despite a judge’s finding that prob-
the warrants are far from bare bones. It thus was able cause existed.
reasonable to rely on the warrants and search the Viewing the entire affidavit against the broad
phones. phone search it authorized, it is borderline rather
For most of this case, Morton’s argument was the than bare bones. And even if our caselaw allowed
one we have just addressed: that searching any a photographs-only inquiry and Morton preserved
part of his phones was unjustified because the affi- that argument, we would still not characterize the
davits establish probable cause only for drug pos- evidence supporting that request as “wholly con-
session and not the trafficking that is more logi- clusory.”
cally tied to phones. But even the panel originally The officers relied in good faith on the warrants
hearing this appeal did not accept that argument the state judge issued.
despite holding that the photos should have been On finding images that appeared to be child
suppressed. The panel recognized probable cause pornography, they went back to the judge for addi-
existed to “search Morton’s contacts, call logs, tional warrants (Morton does not challenge how
and text messages” on his phone, just not the pho- the searches were conducted). We see no unrea-
tos. Morton now runs with this theory that good- sonable law enforcement conduct that warrants
faith should be “analyzed separately” for each suppression of the evidence the searches discov-
area to be searched. Because he did not make this ered.
claim in the district court or in his original appel- We do not decide if the state judge should have
late brief, it is forfeited, and we are not deciding it. authorized full searches of the phones based on
Even if we could consider Morton’s new argument these affidavits. We decide only that the officers
advocating a piecemeal analysis, it would not acted in good faith when relying on the judge’s
change our holding that the good-faith rule decision to issue the warrants. This ruling hardly
applies. At least one other court has taken the nullifies Riley as Morton, amici, and the dissent
approach of the original panel in this case and ana- suggest. Before Riley, police could have searched
lyzed whether an affidavit is bare bones for partic- Morton’s phones on the spot after arresting him.
ular items to be searched. Our precedent takes a Because of Riley, the officers had to obtain war-
different approach. When a defendant moved to rants. For better or worse, the warrant requirement
suppress evidence obtained under a warrant that and good-faith rule make the judge presented with
authorized the seizure of “twenty-six categories of the warrant application the central guardian of
evidence, primarily written and electronic docu- Fourth Amendment rights. That has long been
ments,” our good-faith inquiry did not parse prob- true when officers seek to search a home; Riley
able cause for each category. We instead focused makes it true for searches of cellphones incident to
on whether the affidavit as a whole was bare arrest.
bones, while “keep[ing] in mind that it is more dif- The judgment is AFFIRMED
ficult to demonstrate probable cause for an ‘all U. S. v. Morton, 5 th Cir., No. 19-10842, Aug. 22,
records’ search of a residence than for other 2022.
searches.” That is, the scope of a warrant may
influence whether it is bare bones. An affidavit
that is not bare bones for a limited search could be
bare when supporting a broader search. Keeping

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