US v. Griffith, Cir. D.C., filed August 18, 2017: Exceptionally Strong 4th Amendment Opinion; Great News for Privacy and Electronic Devices

This is an exceptional opinion on an issue of ever-expanding importance, the protections afforded to electronic devices while law enforcement investigates violent crime.  Here, Griffith was a suspect in a homicide.  He went to jail on unrelated charges.  When he was released, 10 months later, he moved in with his girlfriend.  While in jail, he made a couple of phone calls to an associate that showed that he realized he was under investigation for the homicide.  Law enforcement executed a search warrant at his girlfriend’s apartment that resulted in their securing a weapon.  He was charged with felon in possession of a firearm in violation of 18 USC §922(g)(1).  He motioned to suppress the gun but was not successful.  He was convicted and sentenced.  This appeal follows.

The warrant for the girlfriend’s apartment authorized the officers to search for and seize all cell phones and other electronic devices in the residence. The supporting affidavit, however, did not offer any reason to suspect that Griffith owned a cell phone or that incriminating evidence would be found in his apartment.  The Court starts off by noting that Griffith clearly had an expectation of privacy in the apartment since he lived there.  See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990).

The Court found that the lion’s share of the affidavit supporting the warrant application was devoted to showing that Griffith was a suspect as a getaway driver in the homicide that occurred a year earlier.  The Court found that, while that may have established probable cause to arrest Griffith for that participation, it did not carry water for the search warrant. The United States Supreme Court has long distinguished between arrest warrants and search warrants.  See Steagald v. United States, 451 U.S. 204, 212-13 (1981).   While arrest warrants justify the seizure of a person; search warrants justify search and seizure of places, and “[t]here must, of course, be a nexus…between the item to be seized and criminal behavior.”  Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967).  The Court noted that the warrant application in this case sought authorization to search a home which stands at “the very core” of the Fourth Amendment’s protections.  Silverman v. United States, 365 U.S. 505, 511 (1961).   Seeking “all electronic devices” this warrant “involves the prospect of an especially invasive search of an especially protected place.”  Griffith.   Essentially this Court found that the fact that people own cell phones does not justify a blanket search for them, and other electronic devices that may happen to also be in the area to be searched:

We treat the home as the “first among equals” when it comes to the Fourth Amendment.  Florida v. Jardines, 133 S. Ct. 1409 (2013).  The general pervasiveness of cell phones affords an inadequate basis for eroding that core protection.”

In addition to lacking probable cause, the warrant was also infirm because of its overbreadth in allowing seizure of all electronic devices found at the apartment.  The police secured 6 cell phones and one tablet computer.

The Fourth Amendment requires that warrants “particularly describe[e]” the “things to be seized.”  U.S. Const. amend. IV.  That condition “ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.”  Garrison, 480 U.S. at 84.  Consequently, a warrant with an “indiscriminate sweep” is “constitutionally intolerable.”  Stanford v. Texas, 379 U.S. 476, 486 (1965).  We will hold a warrant invalid when “overly broad.”  United States v. Maxwell, 920 F.2d 1028, 1033-34 (D.C. Cir. 1990).

The police never offered any explanation for why Griffith’s girlfriend’s devices could have been appropriately seized.

The Court also shot down the “good faith exception” to the warrant requirement finding that this case fell “well short.”  The Court also denied the government’s claim that Griffith “abandoned” the gun when he threw it from a window. The Court found that Griffith did not “voluntarily abandon” the weapon.  See Bumper v. North Carolina, 391 U.S. 543, 550 (1968).

Judge Brown wrote a dissent that focuses on his belief that the officer’s good faith exception to the warrant requirement should apply.

Again, just an exceptional opinion with great language pertaining to the Fourth Amendment.  This case is a must-read for anyone litigating the Fourth Amendment in the context of electronic devices and data protection.