United States v. Ezra Griffith

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2016 Decided August 18, 2017
No. 13-3061
UNITED STATES OF AMERICA,
APPELLEE
v.
EZRA GRIFFITH,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cr-00013-1)
William H. Burgess argued the cause for appellant. With
him on the briefs were Darren S. Gardner, A.J. Kramer,
Federal Public Defender, and Rosanna M. Taormina, Assistant
Federal Public Defender. Tony Axam Jr., Assistant Federal
Public Defender, entered an appearance.
Lauren R. Bates, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Elizabeth Trosman
and Chrisellen R. Kolb, Assistant U.S. Attorneys.
Before: BROWN, SRINIVASAN and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
2
Dissenting opinion filed by Circuit Judge BROWN.
SRINIVASAN, Circuit Judge: Most of us nowadays carry a
cell phone. And our phones frequently contain information
chronicling our daily lives—where we go, whom we see, what
we say to our friends, and the like. When a person is suspected
of a crime, his phone thus can serve as a fruitful source of
evidence, especially if he committed the offense in concert with
others with whom he might communicate about it. Does this
mean that, whenever officers have reason to suspect a person
of involvement in a crime, they have probable cause to search
his home for cell phones because he might own one and it
might contain relevant evidence? That, in essence, is the
central issue raised by this case.
Appellant Ezra Griffith was charged with unlawful
possession of a firearm by a convicted felon. He moved to
suppress the firearm, arguing that police discovered it while
executing an invalid warrant to search his home. The district
court denied the motion, and a jury convicted Griffith at trial.
Griffith now challenges the denial of his motion to suppress.
The warrant authorized officers to search for and seize all
cell phones and other electronic devices in Griffith’s residence.
The supporting affidavit, however, offered almost no reason to
suspect that Griffith in fact owned a cell phone, or that any
phone or other device containing incriminating information
would be found in his apartment. In our view, the fact that most
people now carry a cell phone was not enough to justify an
intrusive search of a place lying at the center of the Fourth
Amendment’s protections—a home—for any phone Griffith
might own.
We therefore agree with Griffith that the warrant to search
his residence was unsupported by probable cause. We also
3
reject the government’s arguments that, even if the warrant was
invalid, the firearm still need not have been excluded from the
evidence against him. Consequently, we vacate Griffith’s
conviction.
I.
In January 2013, police obtained a warrant to search
Griffith’s residence in connection with their investigation of a
homicide committed more than one year earlier. Investigators
concluded that the shooting related to a conflict between rival
gangs. The officers knew Griffith was a member of one of the
gangs and suspected he drove the getaway car, which
surveillance footage had captured circling the scene. Two
months after the shooting, police found a vehicle matching the
surveillance footage and registered to Griffith’s mother. Eight
months later, a detective met with Griffith’s mother, who
confirmed that Griffith had been the vehicle’s principal user.
During much of the year-long investigation, Griffith had
been incarcerated on unrelated charges. Detectives obtained
recordings of Griffith’s jailhouse phone calls made on the day
they interviewed his mother. Griffith initiated four calls that
day: two to his home number (where his mother lived) and two
to his grandmother’s home phone. In one of the calls, Griffith
spoke to Dwayne Hilton, another suspect in the shooting, and
said, “man you know it’s about that.” A. 33. The two briefly
discussed a “whip” (slang for car), before Hilton changed the
subject. Id. In another call, Griffith’s brother reported that
fellow gang member Carl Oliphant needed to speak with
Griffith. Oliphant did not have a cell phone, so Griffith’s
brother walked with a phone to Oliphant’s house. Griffith then
briefly explained to Oliphant that detectives had been
investigating the car.
4
In September 2012, Griffith was released from his
confinement on the unrelated charges after serving
approximately 10 months. Detectives learned that Griffith
moved into an apartment owned by his girlfriend, Sheree
Lewis. In January 2013, police sought a warrant to search
Lewis’s apartment.
The bulk of the ten-page affidavit supporting the search
warrant explained Griffith’s suspected involvement in the
homicide committed more than one year beforehand. The
affiant, a 22-year veteran of the police department, recounted
the evidence and expressed his belief that Griffith had been the
getaway driver. The affidavit also described the evidence that
Griffith now lived with Lewis in her apartment.
Two sentences in the affidavit then set out the basis for
believing incriminating evidence would be discovered in the
apartment. Those sentences read as follows:
Based upon your affiant’s professional training
and experience and your affiant’s work with
other veteran police officers and detectives, I
know that gang/crew members involved in
criminal activity maintain regular contact with
each other, even when they are arrested or
incarcerated, and that they often stay advised
and share intelligence about their activities
through cell phones and other electronic
communication devices and the Internet, to
include Facebook, Twitter and E-mail
accounts.
Based upon the aforementioned facts and
circumstances, and your affiant’s experience
and training, there is probable cause to believe
5
that secreted inside of [Lewis’s apartment] is
evidence relating to the homicide discussed
above.
A. 35-36. The affidavit then concluded by enumerating the
items the officers sought to seize from the apartment,
principally any cell phones and electronic devices found there.
On January 4, 2013, a magistrate judge granted the
application for a search warrant. As requested in the affidavit,
the warrant authorized a search for, and seizure of, the
following items:
all electronic devices to include, but not limited
to cellular telephone(s), computer(s), electronic
tablet(s), devices capable of storing digital
images (to include, but not limited to, PDAs,
CDs, DVD’s [and] jump/zip drives), evidence
of ownership of such devices, subscriber
information relating to the electronic devices,
any information describing, referencing, or
mentioning in any[ ]way the above-described
offense, any handwritten form (such as writing
to include but not limited to notes, papers, or
mail matter), photographs, newspaper articles
relating to the shooting death [under
investigation], and any indicia of occupancy of
the premises described above.
A. 26.
Three days later, on January 7, a team of officers executed
the search. The officers arrived at 7:10 AM and surrounded the
building. When they knocked on the door and announced they
had a search warrant, an officer assigned to contain the
6
premises observed an arm throw an object out of the
apartment’s window. The officer determined that the object
was a firearm and then glanced at the window. He saw Griffith
looking back at him.
About 30 seconds after the officers knocked on the door
and announced they had a search warrant, Lewis opened the
door. Officers found three people inside the apartment: Lewis,
Griffith, and a six-year-old child. Officers knew one of those
three people had tossed the gun out of the window. Officers
seized the gun, and also seized a number of cell phones
recovered in the course of their search of the apartment.
Based on the containment officer’s identification of him,
the government charged Griffith with possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Griffith moved to suppress all tangible evidence seized under
the search warrant, including the gun. He challenged the
warrant as facially invalid, arguing there was no evidence he
had ever owned a cell phone or other electronic device, or that
any such device would be found in the apartment. The
government argued that the warrant was supported by probable
cause, or that, at a minimum, the good-faith exception to the
exclusionary rule applied. See United States v. Leon, 468 U.S.
897 (1984). The government further contended that Griffith in
any event lacked standing to seek suppression of the gun
because he had voluntarily abandoned it when he tossed it out
of the window.
The district court denied Griffith’s suppression motion.
The court rejected the government’s abandonment argument
because it thought the merits of the government’s position on
that issue would rise or fall with the legality of the
government’s “entry into the apartment that prompted the
tossing of the gun.” A. 110. The court also declined to decide
7
whether the warrant was supported by probable cause, holding
that, regardless, the good-faith exception to the exclusionary
rule applied.
At trial, a jury convicted Griffith of unlawful possession
of a firearm by a felon. He appeals his conviction, challenging
the district court’s denial of his suppression motion.
II.
We first consider the validity of the warrant authorizing
the search of Lewis’s apartment. Because Griffith lived with
Lewis at the time, he had a legitimate expectation of privacy in
her home for purposes of raising a Fourth Amendment
challenge. See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990).
The government’s argument in support of probable cause
to search the apartment rests on the prospect of finding one
specific item there: a cell phone owned by Griffith. Yet the
affidavit supporting the warrant application provided virtually
no reason to suspect that Griffith in fact owned a cell phone, let
alone that any phone belonging to him and containing
incriminating information would be found in the residence. At
the same time, the warrant authorized the wholesale seizure of
all electronic devices discovered in the apartment, including
items owned by third parties. In those circumstances, we
conclude that the warrant was unsupported by probable cause
and unduly broad in its reach.
A.
The Fourth Amendment prescribes that “no Warrants shall
issue, but upon probable cause.” U.S. Const. amend. IV. When
assessing whether a search warrant is supported by probable
cause, we ask whether the issuing judge had a “substantial
8
basis” for concluding that “a search would uncover evidence of
wrongdoing.” Illinois v. Gates, 462 U.S. 213, 236 (1983)
(quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
Although we pay “great deference” to the judge’s initial
determination of probable cause, a warrant application cannot
rely merely on “conclusory statement[s].” Id. at 236, 239
(citing Nathanson v. United States, 290 U.S. 41 (1933)).
Here, the lion’s share of the affidavit supporting the
warrant application is devoted to establishing Griffith’s
suspected involvement as the getaway driver in a homicide.
That information might have established probable cause to
arrest Griffith for his participation in the crime. The warrant
application, though, was for a search warrant, not an arrest
warrant. And to obtain a warrant to search for and seize a
suspect’s possessions or property, the government must do
more than show probable cause to arrest him. The government
failed to make the requisite showing in this case.
1. The Supreme Court has long distinguished between
arrest warrants and search warrants. See Steagald v. United
States, 451 U.S. 204, 212-13 (1981). An arrest warrant rests
on probable cause to believe that the suspect committed an
offense; it thus primarily serves to protect an individual’s
liberty interest against an unreasonable seizure of his person.
Id. at 213. A search warrant, by contrast, is grounded in
“probable cause to believe that the legitimate object of a search
is located in a particular place.” Id. Rather than protect an
individual’s person, a search warrant “safeguards an
individual’s interest in the privacy of his home and possessions
against the unjustified intrusion of the police.” Id.
In light of the distinctness of the inquiries, probable cause
to arrest a person will not itself justify a warrant to search his
property. Regardless of whether an individual is validly
9
suspected of committing a crime, an application for a search
warrant concerning his property or possessions must
demonstrate cause to believe that “evidence is likely to be
found at the place to be searched.” Groh v. Ramirez, 540 U.S.
551, 568 (2004). Moreover, “[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).
Those concerns about the distinct requirements for a
search warrant are particularly salient in this case, for two
reasons. First, the warrant application 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); see Groh, 540 U.S. at 559. Second, the
scope of a permissible search depends on the specific spaces in
which the object of the search might be found. See Maryland
v. Garrison, 480 U.S. 79, 84-85 (1987). Authorization to
search for an item fitting in the palm of a hand, like a cell
phone, thus can entail an intrusive inspection of all corners of
a home. (And here, as explained below, officers sought and
obtained authorization to continue their search until they found
every cell phone and electronic device in the apartment.) This
case, in short, involves the prospect of an especially invasive
search of an especially protected place.
Although the warrant application sought authorization to
search for items other than a cell phone, those additional items
have no bearing on our assessment of probable cause to search
the home. The application, for instance, encompassed the
seizure of any documents, newspaper articles, photographs, or
other information relating to the crime. The affiant, however,
suggested no reason whatsoever to expect the presence of
incriminating documents, newspaper articles, or photographs
in the apartment. The affidavit in fact contained no mention of
10
those items apart from a final sentence summarily seeking
authorization to seize any of them officers might happen to
discover. The government thus understandably makes no
argument that there was probable cause to search the apartment
due to a belief that incriminating documents, articles, or
photographs would be found there.
The application also referenced electronic devices apart
from cell phones, including computers, tablets, and personal
digital assistants. Again, though, the affidavit provided no
reason to suppose that Griffith possessed any of those devices
or that any would be found in the apartment. And although we
give a “commonsense” rather than “hypertechnical” reading to
a warrant application, Gates, 462 U.S. at 236 (internal
quotation marks omitted), there is no commonsense reason
simply to presume that individuals own a computer or tablet.
Those sorts of devices do not approach cellphones in their
ubiquity: whereas the Supreme Court, around the time of the
warrant application in this case, observed that “more than 90%
of American adults . . . own a cell phone,” Riley v. California,
134 S. Ct. 2473, 2490 (2014), the same organization cited by
the Court for that measure estimated the contemporaneous
incidence of tablet ownership among adults at roughly 30%
(2013), and of computer ownership at roughly 75% (2015), see
Technology Device Ownership: 2015, Pew Research Center
(Oct. 29, 2015), http://www.pewinternet.org/2015/10/29/
technology-device-ownership-2015.
2. That brings us back to the warrant application’s reliance
on cell phones—in particular, on the possibility that Griffith
owned a cell phone, and that his phone would be found in the
home and would contain evidence of his suspected offense.
With regard to his ownership of a cell phone, it is true that, as
the Supreme Court recently said, cell phones are now “such a
pervasive and insistent part of daily life that the proverbial
11
visitor from Mars might conclude they were an important
feature of human anatomy.” Riley, 134 S. Ct. at 2484. We do
not doubt that most people today own a cell phone.
But the affidavit in this case conveyed no reason to think
that Griffith, in particular, owned a cell phone. There was no
observation of Griffith’s using a cell phone, no information
about anyone having received a cell phone call or text message
from him, no record of officers recovering any cell phone in his
possession at the time of his previous arrest (and confinement)
on unrelated charges, and no indication otherwise of his
ownership of a cell phone at any time. To the contrary, the
circumstances suggested Griffith might have been less likely
than others to own a phone around the time of the search: he
had recently completed a ten-month period of confinement,
during which he of course had no ongoing access to a cell
phone; and at least one person in his circle—his potential co-
conspirator, Carl Oliphant—was known not to have a cell
phone.
We are aware of no case, and the government identifies
none, in which police obtained authorization to search a
suspect’s home for a cell phone without any particularized
information that he owned one. In the typical case, officers will
have already come into possession of a suspect’s phone after
seizing it on his person incident to his arrest. See, e.g., id. at
2480-82; United States v. Bass, 785 F.3d 1043, 1049 (6th Cir.
2015). Officers also might receive reliable indication of a
suspect’s possession of a cell phone. See, e.g., United States v.
Mathis, 767 F.3d 1264, 1269 (11th Cir. 2014); United States v.
Grupee, 682 F.3d 143, 145-46 (1st Cir. 2012). There was no
such information here about Griffith.
3. To justify a search of the apartment to seize any cell
phone owned by Griffith, moreover, police needed reason to
12
think not only that he possessed a phone, but also that the
device would be located in the home and would contain
incriminating evidence about his suspected offense. With
respect to the first of those additional considerations, the
affidavit set out no reason to believe the phone was “likely to
be found at the place to be searched.” See Groh, 540 U.S. at
568. People ordinarily carry their cell phones with them
wherever they go. A cell phone, after all, is nearly a “feature
of human anatomy.” Riley, 134 S. Ct. at 2484. “According to
one poll” cited by the Supreme Court, “nearly three-quarters of
smart phone users report being within five feet of their phones
most of the time,” leading the Court to describe persons “who
own a cell phone” as “keep[ing] on their person a digital
record of nearly every aspect of their lives.” Id. at 2490
(emphasis added).
In that light, the assumption that most people own a cell
phone would not automatically justify an open-ended warrant
to search a home anytime officers seek a person’s phone.
Instead, such a search would rest on a second assumption: that
the person (and his cell phone) would be home. When, as here,
the police execute a warrant early in the morning, such an
assumption might be fair, but it entails adding another layer of
inference onto an already questionable probable cause calculus.
And the warrant in any event gave officers authority to search
Griffith’s apartment for any cell phones without regard to his
presence on the scene. Indeed, the police, not knowing whether
Griffith owned a cell phone, sought and obtained authority to
maintain their search until they found all cell phones in Lewis’s
apartment, so that they could later assess which (if any)
belonged to Griffith.
The upshot is that the information in the warrant
application might well have supported an arrest warrant for
Griffith—which in turn presumably would have occasioned a
13
search of him incident to his arrest, and an ensuing seizure of
any cell phone he owned in the most likely place to find it (on
his person). See id. at 2486. But the government instead
elected to seek license to conduct a full-scale search of his
entire home based on the possibility that he owned a phone and
that a phone found there might be his.
The government urges us to assume that a home might
contain incriminating evidence based on decisions allowing a
search of a residence for drugs. That context is markedly
different. Our decisions have considered probable cause to
suspect a person of involvement in drug trafficking as
supporting probable cause to believe drugs will be found in his
residence. See United States v. Washington, 775 F.3d 405, 409
(D.C. Cir. 2014); United States v. Cardoza, 713 F.3d 656, 661
(D.C. Cir. 2013). But we have done so precisely because drug
traffickers “rarely keep on their person or immediately about
them their entire supply of drugs.” Washington, 775 F.3d at
409. And “[f]or the vast majority of drug dealers, the most
convenient location to secure items is the home.” Cardoza, 713
F.3d at 661 (quoting United States v. Spencer, 530 F.3d 1003,
1007 (D.C. Cir. 2008)). The same considerations do not apply
to cell phones. Although a trafficker ordinarily would keep the
bulk of his drugs away from his person and in the security of
his home, a person typically would keep her cell phone with
her.
4. Finally, even if we assume Griffith owned a phone and
that his phone would be found in the apartment, what about the
likelihood that the phone would contain incriminating
evidence? Because a cell phone, unlike drugs or other
contraband, is not inherently illegal, there must be reason to
believe that a phone may contain evidence of the crime. On
that score, the affidavit in this case stated only that, in the
affiant’s experience, gang members “maintain regular contact
14
with each other” and “often stay advised and share intelligence
about their activities through cell phones and other electronic
communication devices and the Internet.” A. 35.
That assessment might have added force if officers had
been investigating a more recent crime. Because the
information on a cell phone can enable reconstruction of the
“sum of an individual’s private life,” Riley, 134 S. Ct. at 2489,
the police often might fairly infer that a suspect’s phone
contains evidence of recent criminal activity, see id. at 2492,
perhaps especially when, as here, multiple perpetrators may
have coordinated the crime. But by the time police sought the
warrant in this case, more than a year had elapsed since the
shooting.
We require the existence of probable cause “at the time
that law enforcement applies for a warrant,” such that “the
freshness of the supporting evidence is critical.” Washington,
775 F.3d at 408; see also United States v. Grubbs, 547 U.S. 90,
95 n.2 (2006). Insofar as Griffith might have used a cell phone
to communicate with his associates around the time of the
crime, the search of the apartment would be grounded in an
assumption that he continued to possess the same phone more
than one year later. In the intervening period, though, he had
been confined for some ten months. What is more, even in the
event that Griffith, after his release, recovered possession of the
same phone he had owned at the time of the crime, he would
have had ample opportunity to delete incriminating
information from the device by the time of the search (which
occurred more than four months after his release). He had
every incentive to cleanse his phone, and also to refrain from
adding any new incriminating information to it: he had become
aware of the investigation of him by the time of his release.
15
In that light, the government gains little by relying on
Griffith’s making of calls to his associates on a recorded jail
line upon learning of the investigation. Griffith’s use of a
landline phone when confined sheds minimal light on whether
any cell phone he once owned would retain any incriminating
information if recovered in a search of his post-release
residence. Nor do Griffith’s calls from jail indicate how he
would communicate upon his release, when he could contact
his associates, if at all, in person. The jailhouse calls also
occurred in response to a specific triggering event—his
learning of the investigation. And, even then, those calls took
place several months before officers obtained and executed the
search warrant.
As a general matter, the likelihood that incriminating
evidence continues to exist in the place to be searched—taking
into account “the opportunities those involved in the crime
would have had to remove or destroy [incriminating] items”—
is an important consideration when assessing the existence of
probable cause. See 2 Wayne R. LaFave, Search & Seizure
§ 3.7(a) (5th ed. 2016). Here, that consideration weighs against
justifying a search of Lewis’s apartment on any expectation
that it would yield a phone that belonged to Griffith and
retained information about a crime he might have committed
more than one year earlier (and for which he had long known
he was a suspect).
In view of the limited likelihood that any cell phone
discovered in the apartment would contain incriminating
evidence of Griffith’s suspected crime, the government’s
argument in favor of probable cause essentially falls back on
our accepting the following proposition: because nearly
everyone now carries a cell phone, and because a phone
frequently contains all sorts of information about the owner’s
daily activities, a person’s suspected involvement in a crime
16
ordinarily justifies searching her home for any cell phones,
regardless of whether there is any indication that she in fact
owns one. Finding the existence of probable cause in this case,
therefore, would verge on authorizing a search of a person’s
home almost anytime there is probable cause to suspect her of
a crime. We cannot accept that proposition.
We treat the home as the “first among equals” when it
comes to the Fourth Amendment. Florida v. Jardines, 133 S.
Ct. 1409, 1414 (2013). The general pervasiveness of cell
phones affords an inadequate basis for eroding that core
protection.
B.
The lack of probable cause to search Lewis’s apartment for
any cell phone owned by Griffith itself renders the warrant
invalid under the Fourth Amendment. But the warrant was also
invalid for an additional reason: its overbreadth in allowing the
seizure of all electronic devices found in the residence. The
officers executing the warrant made good on that authorization,
seizing six cell phones and one tablet computer.
1. The Fourth Amendment requires that warrants
“particularly describ[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).
17
In obligating officers to describe the items to be seized
with particularity, the Fourth Amendment prevents “the
issu[ance] of warrants on loose, vague or doubtful bases of
fact.” Go-Bart Importing Co. v. United States, 282 U.S. 344,
357 (1931). In that way, “the requirement of particularity is
closely tied to the requirement of probable cause.” 2 LaFave,
Search & Seizure § 4.6(a). When a warrant describes the
objects of the search in unduly “general terms,” it “raises the
possibility that there does not exist a showing of probable cause
to justify a search for them.” Id. § 4.6(d).
The warrant in this case authorized police to search for and
seize “all electronic devices to include but not limited to
cellular telephone(s), computer(s), electronic tablet(s), devices
capable of storing digital images (to include, but not limited to,
PDAs, CDs, DVD’s [and] jump/zip drives).” A. 36. The
affidavit, as explained, failed to establish probable cause to
suspect that any cell phones or other electronic devices
belonging to Griffith and containing incriminating information
would be found in the apartment. Yet the warrant did not stop
with any devices owned by Griffith, which already would have
gone too far. It broadly authorized seizure of all cell phones
and electronic devices, without regard to ownership. That
expansive sweep far outstripped the police’s proffered
justification for entering the home—viz., to recover any
devices owned by Griffith.
Indeed, the terms of the warrant allowed officers
unfettered access to any electronic device in the apartment even
if police knew the device belonged to someone other than
Griffith. He shared the apartment with Lewis, his girlfriend,
and the warrant authorized police to search for and seize all of
her electronic devices. For instance, if officers executing the
warrant had seen Lewis using her cell phone in her apartment,
the warrant would have authorized them to seize that phone.
18
Yet the police unsurprisingly offered no explanation of why
Lewis’s devices could have been appropriately seized.
The warrant’s overbreadth is particularly notable because
police sought to seize otherwise lawful objects: electronic
devices. Courts have allowed more latitude in connection with
searches for contraband items like “weapons [or] narcotics.”
Stanford, 379 U.S. at 486 (internal quotation marks omitted).
But the understanding is different when police seize
“innocuous” objects. See Andresen v. Maryland, 427 U.S. 463,
482 n.11 (1976). Those circumstances call for special “care to
assure [the search is] conducted in a manner that minimizes
unwarranted intrusions upon privacy.” Id.; see also 2 LaFave,
Search & Seizure § 4.6(d).
Of course, even with searches of lawful objects, we may
allow a broader sweep when a reasonable investigation cannot
produce a more particular description. See Andresen, 427 U.S.
at 480 n.10. There may be circumstances in which police have
probable cause to seize a phone, yet still lack specific
information about the phone’s make or model. For example,
police might learn a suspect uses a phone through an informant,
and thus have no ability to describe the specific characteristics
of any phone belonging to him. In that sort of situation, we
recognize that some innocuous devices would need to “be
examined, at least cursorily,” to determine their relevance to
the investigation. Id. at 482 n.11.
But even then, it is no answer to confer a blanket
authorization to search for and seize all electronic devices. The
warrant must be tailored to the justifications for entering the
home. In this case, the warrant should have limited the scope
of permissible seizure to devices owned by Griffith, or devices
linked to the shooting. The Department of Justice in fact
encourages use of that sort of approach in certain situations.
19
See Office of Legal Educ., Searching and Seizing Computers
and Obtaining Electronic Evidence in Criminal Investigations,
Crim. Div., Dep’t of Justice 69-72 (2015),
https://www.justice.gov/sites/default/files/criminal-ccips/lega
cy/2015/01/14/ssmanual2009.pdf.
Such a warrant would have enabled police to sweep more
broadly when executing the search, but would have disabled
them from seizing devices plainly unrelated to the crime.
Officers, for example, could have examined a device they
initially thought might belong to Griffith, but they could not
have seized the device if they became aware it belonged to
Lewis. That sort of approach would “minimize[] unwarranted
intrusions upon privacy.” Andresen, 427 U.S. at 482 n.11.
2. The government does not deny that the warrant in this
case would be invalid insofar as it authorized the seizure of all
devices found in the apartment without regard to ownership.
The government instead argues that, for various reasons, the
warrant should be read more narrowly. We find those
arguments unpersuasive.
For instance, the government submits that the warrant
should be read in conjunction with the attached affidavit,
which, in the government’s view, would narrow the
permissible scope of seizure to the shooting under
investigation. We read warrants by reference to an affidavit,
however, only if the issuing judge uses “explicit words on the
warrant” indicating an intention to incorporate the affidavit’s
contents and “thereby limit [the warrant’s] scope.” Maxwell,
920 F.2d at 1032. Here, the warrant referenced the affidavit
only in noting generally that the “[a]ffidavit, herewith attached,
having been made before me by Detective Konstantinos S.
Giannakoulias,” provided “probable cause.” A. 26. We have
rejected similar statements as insufficient to demonstrate the
20
requisite intention to narrow a warrant’s sweep by
incorporating an affidavit. See Maxwell, 920 F.2d at 1032-33.
Nor does the government allay our concerns by suggesting
it would have attempted to determine which of the seized
devices in fact belonged to Griffith and would have sought a
separate warrant to search the contents of those—and only
those—devices. As an initial matter, the warrant, according to
its terms, seemingly would have authorized police to search
any electronic devices in the residence. At the federal level,
Federal Rule of Criminal Procedure 41 provides that, “[u]nless
otherwise specified,” a warrant authorizing seizure of
electronic storage media also “authorizes a later review of the
media or information consistent with the warrant.” Fed. R.
Crim. P. 41(e)(2)(B). The warrant here included no express
limitations on agents’ authority to examine any electronic
devices seized. To the extent the officers showed restraint
when executing the search, “this restraint was imposed by the
agents themselves, not by a judicial officer.” Groh, 540 U.S.
at 561 (internal quotation marks omitted).
In any event, our holding does not turn on whether the
police had the power to search the devices’ digital contents.
The police lacked probable cause to seize all electronic devices
in the home in the first place. The warrant was invalidly
overbroad in enabling officers to do so.
Finally, the government raises a procedural objection
concerning whether Griffith properly preserved a challenge to
the warrant’s particularity before the district court. We find no
merit in the government’s objection. Griffith’s overbreadth
argument is simply an extension of his probable cause
challenge, which he has pressed all along. He does not claim
that the warrant failed to list the particular items police would
seize. Instead, he claims that the warrant was overbroad in
21
authorizing “seizure of theoretical electronic devices that
belonged to people who were unrelated to the warrant’s
justifications.” Appellant Reply Br. 19. That is a species of
the same legal theory he urged before the district court: the
police lacked probable cause to seize all electronic devices in
the residence. See United States v. Peyton, 745 F.3d 546, 551-
52 (D.C. Cir. 2014). We agree, and hold the warrant was
constitutionally invalid for that reason.
III.
The invalidity of the search warrant would not necessarily
require excluding evidence recovered in its execution. Under
the good-faith exception to the exclusionary rule, “evidence
seized in reasonable, good-faith reliance on a search warrant”
need not be excluded, even if the warrant turns out to have been
unsupported by probable cause. Leon, 468 U.S. at 905 (citation
omitted). Here, the district court, while suggesting it might
disagree with the issuing judge’s probable-cause
determination, declined to suppress the firearm because it
concluded the good-faith exception applied. We find Leon’s
good-faith exception inapplicable in the particular
circumstances of this case.
As the Court explained in Leon, the good-faith exception
does not apply if a warrant is “based on an affidavit so lacking
in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Id. at 923 (internal quotation
marks omitted). When applying that standard, we consider the
objective reasonableness not only of “the officers who
eventually executed the warrant, but also of the officers who
originally obtained it or who provided information material to
the probable-cause determination.” Id. at 923 n.24. We thus
ask whether an objectively reasonable officer could think the
22
affidavit established probable cause, keeping in mind the
inadequacy of a “bare bones” affidavit. Id.
We conclude that the affidavit in this case fell short to an
extent precluding good-faith reliance on the warrant. As
explained, the government’s theory of probable cause to search
the apartment runs as follows: (i) Griffith might own a cell
phone; (ii) if so, his phone might be found in the residence; and
(iii) if so, the phone might retain incriminating
communications or other information about a crime committed
more than one year earlier. Whatever may be the
reasonableness of any of those inferences standing on its own,
demonstrating probable cause required adequately establishing
all three in combination. The affidavit did not approach doing
so. It provided no explanation at all of whether Griffith might
own a phone or whether any such phone might be in his home.
And with regard to whether any phone would retain any
incriminating information about a shooting occurring more
than one year beforehand, it observed only that gang members
often stay in contact about their activities.
Additionally, the affidavit sought, and the warrant granted,
authorization to search for and seize every electronic device
found in the home. The warrant’s material overbreadth in that
regard underscored the police’s unawareness of the existence
of any such devices in the first place (much less the existence
of any belonging to Griffith): given that police did not know
whether Griffith owned a cell phone or any other electronic
device, they could not describe ex ante the devices they would
search for and seize. But it was no solution to rely on a catchall
provision authorizing seizure of every device they might
happen to find in the house. Nothing in the affidavit or warrant
supported—or could have supported—probable cause to seize
any and all phones, tablets, computers, and other electronic
devices in the apartment.
23
With regard to the warrant’s overbreadth, our dissenting
colleague emphasizes that, in one previous decision, we
applied the good-faith exception to deny suppression of
evidence seized under an overbroad warrant. See infra at 8-10
(Brown, J., dissenting). But that decision, United States v.
Maxwell, 920 F.2d 1028, did not purport to hold that the good-
faith exception always applies in the case of an overbroad
warrant. The inquiry is a contextual one, and courts have
denied reliance on the good-faith exception when a warrant
sweeps too broadly in describing the items subject to seizure.
See United States v. Leary, 846 F.2d 592, 606-10 (10th Cir.
1988). In Maxwell, moreover, we cast no doubt on the
existence of probable cause to suspect the presence in the
searched residence of at least some incriminating items
encompassed by the warrant. Here, though, for the reasons
explained, the affidavit failed to establish probable cause to
believe that any cell phone (or other electronic device)
containing incriminating information about Griffith’s
suspected offense would be found in the apartment.
Taken together, those failings as to probable cause and
overbreadth bring the warrant beyond the good-faith
exception’s reach. In so holding, we stress that the inquiry is
an objective one. We have no occasion to suspect any ill
motive or subjective bad faith on the part of the officers who
prepared and executed the warrant. The Supreme Court has
found Leon’s objective standard unmet notwithstanding the
absence of any reason to suppose that officers acted in bad faith
in relying on an invalid warrant. See Groh, 504 U.S. at 563-65
& n.8. We do the same here.
Further, we do not doubt that most criminals—like most
people—have cell phones, or that many phones owned by
criminals may contain evidence of recent criminal activity.
Even so, officers seeking authority to search a person’s home
24
must do more than set out their basis for suspecting him of a
crime. The affidavit in this case might have established the
authority to seize an individual; it fell materially short of
justifying a search of his home.
IV.
Finally, the government argues we should decline to
suppress the firearm because Griffith abandoned the gun by
throwing it out of the window. Griffith, though, tossed the
firearm in response to the police’s announcement that they had
a warrant to search the apartment. Because the warrant was
invalid and the officers thus lacked authority to execute the
announced search, we find suppression of the firearm to be
warranted.
Officers may lawfully seize property that has been
voluntarily abandoned. See United States v. Thomas, 864 F.2d
843, 845-46 (D.C. Cir. 1989). But we do not treat an item as
voluntarily abandoned when a person discards it “due to the
unlawful activities of police officers, as where the disposal was
prompted by police efforts to make an illegal arrest or search.”
2 Wayne R. LaFave et al., Criminal Procedure § 3.2(h) (4th ed.
2016) (internal quotation marks omitted). For example, in
United States v. Wood, 981 F.2d 536 (D.C. Cir. 1992), we
ordered the suppression of a gun dropped by a suspect after
police had unlawfully ordered him to “halt right there,” id. at
537, 541. Although the suspect had discarded the gun, we
found “a direct nexus between the illegal seizure and the
recovery of the weapon.” Id. at 541; see also United States v.
Brodie, 742 F.3d 1058, 1063 (D.C. Cir. 2014); United States v.
Lewis, 921 F.2d 1294, 1302 (D.C. Cir. 1990). Our sister
circuits likewise uniformly decline to deem evidence
voluntarily abandoned when it is thrown away as the direct
consequence of officers’ efforts to execute an unlawful search
25
or seizure. See United States v. Stephens, 206 F.3d 914, 917
(9th Cir. 2000); United States v. Austin, 66 F.3d 1115, 1118
(10th Cir. 1995).
Similarly, we cannot treat Griffith’s actions here as a
voluntary abandonment. Griffith tossed the gun out of the
window only after officers had knocked on the door and
announced a search warrant. The officers’ invocation of a
warrant was tantamount to a pronouncement that Griffith had
“no right to resist the search.” See Bumper v. North Carolina,
391 U.S. 543, 550 (1968). As soon as police claimed to have
a search warrant, Griffith knew he had no choice but to grant
them access to his home, either by opening the door and
allowing them inside or by submitting to a forced entry after a
“reasonable wait time.” See Hudson v. Michigan, 547 U.S.
586, 590 (2006) (internal quotation marks omitted).
The government does not dispute that Griffith abandoned
the gun in reaction to the officers knocking on the door and
announcing they had a search warrant. The government
nonetheless contends that, under California v. Hodari D., 499
U.S. 621 (1991), there was no need to suppress the firearm. In
that case, a suspect ran from a pursuing officer instead of
submitting to the latter’s show of authority calling for him to
stop; and in the course of his flight, he dropped drugs he had
been carrying. See id. at 625-26. The “narrow question”
considered by the Court was “whether, with respect to a show
of authority . . . a seizure occurs even though the subject does
not yield.” Id. at 626. The Court concluded that no seizure had
taken place because the subject did not submit to the officer’s
assertion of authority. And because there had been no seizure,
the abandoned drugs were not the fruit of any seizure and thus
need not have been excluded. Id. at 629.
 26
Hodari D. differs from this case in significant respects.
That case involved an officer’s efforts to seize a person on the
street, not to search a person’s home. An “officer’s leave to
gather information is sharply circumscribed when he steps off
[public] thoroughfares and enters the Fourth Amendment’s
protected areas,” Jardines, 133 S. Ct. at 1415, with “the home”
standing at “the Amendment’s very core,” id. at 1414 (internal
quotation marks omitted). And regardless of the venue, to the
extent the attempted seizure of a fleeing person in Hodari D.
could have implications for the announced search of a home,
Hodari D. turned on the subject’s refusal to submit to the
officer’s assertion of authority. See 499 U.S. at 626-27. If a
person submits to the officer’s show of authority, Hodari D. is
inapplicable. See Wood, 981 F.2d at 539-41. Here, the officers,
upon announcing their possession of a search warrant,
proceeded to execute their search of the apartment without any
resistance from Griffith or the other occupants.
The government does not dispute that suppression of the
firearm would be appropriate if, at the time Griffith tossed it
out of the window, the officers had already begun crossing the
threshold of the door. At that point, the government evidently
allows, a search would have commenced and exclusion of any
relinquished evidence would be required. But Griffith, the
government emphasizes, abandoned the gun before the officers
entered the house—i.e., while they stood at the door poised to
enter after having announced they had a search warrant. We
see no basis for drawing such a rigid distinction between the
officers’ announcement of a warrant and their ensuing entry.
Imagine, for example, that police knock on a home’s door,
falsely claim to have a search warrant, and then ask the resident
to hand over all firearms when she comes to the door. She
might comply, as the officers, by invoking a warrant, will have
effectively announced that she has no right to resist their entry.
27
See Bumper, 391 U.S. at 550. Under the government’s theory,
there presumably would be no need to suppress the firearms
because the officers would have obtained them without
entering the home. We reject the suggestion that the
admissibility of firearms obtained by virtue of the officers’
misconduct in such a situation would turn on whether they
happened to have placed one foot inside the home. Indeed, the
Supreme Court has elsewhere explained that a person’s Fourth
Amendment interests in his home “would be of little practical
value if the State’s agents could stand in a home’s porch or side
garden and trawl for evidence with impunity.” Jardines, 133
S. Ct. at 1414.
To be sure, officers generally may approach a home and
knock on the door without raising any Fourth Amendment
concerns. If an occupant responds to the officers’ knock by
abandoning (or voluntarily turning over) evidence, there will
have been no Fourth Amendment violation. But that is
because, “[w]hen law enforcement officers who are not armed
with a warrant knock on a door, they do no more than any
private citizen might do.” Kentucky v. King, 563 U.S. 452, 469
(2011) (emphasis added). When an officer claims to have a
warrant, however, she invokes authority unavailable to a
private citizen. To conclude otherwise would allow the police
to go door-to-door announcing search warrants in the hopes
that occupants would respond by abandoning contraband or
other evidence within the officers’ view.
For those reasons, we decline in this case to draw a
talismanic line at the home’s door. Once the police assert
authority to search a home pursuant to an invalid warrant,
evidence relinquished in response to the officers’
announcement is unlawfully obtained. Here, consequently, we
hold that the firearm abandoned in response to the police’s
28
announcement of an invalid search warrant must be
suppressed.
* * * * *
For the foregoing reasons, we reverse the judgment of the
district court and vacate Griffith’s conviction.
So ordered.
BROWN, Circuit Judge, dissenting: Today the Court’s
opinion attempts to write the good faith exception out of our
case law. Nothing in the record suggests the officers involved
in this case were doing anything other than attempting to solve
an unsolved murder while scrupulously observing the letter of
the law. Yet, today’s opinion impugns their motives by
declaring their reliance upon a search warrant approved by a
disinterested magistrate to be “entirely unreasonable.” It also
misconstrues the very purpose of the exclusionary rule and the
point of the good faith exception by applying the former and
rejecting the latter in a way that contradicts precedent from
both the Supreme Court and this Court. Because I believe the
good faith exception to the exclusionary rule easily
encompasses the facts of this case, I respectfully dissent.
I.
A.
As explained by the Supreme Court, “[t]he Fourth
Amendment protects the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures . . . [but] says nothing about suppressing
evidence obtained in violation of this command.” Davis v.
United States, 564 U.S. 229, 236 (2011). Consequently, the
use of evidence obtained pursuant to an unlawful search or
seizure “work[s] no new Fourth Amendment wrong.” United
States v. Calandra, 414 U.S. 338, 354 (1974). Moreover, the
exclusion of evidence is “not a personal constitutional right,”
Stone v. Powell, 428 U.S. 465, 486 (1976), “nor is it designed
to redress the injury occasioned by an unconstitutional search,”
Davis, 564 U.S. at 236. Instead, the exclusionary rule is a
“prudential doctrine” created to “compel respect” for the
Fourth Amendment’s guaranty against unreasonable searches
and seizures. Id.
2
Deterring law enforcement officials from engaging in
future Fourth Amendment violations supports this goal.
Herring v. United States, 555 U.S. 135, 141 (2009); Calandra,
414 U.S. at 348. However, the mere fact that the exclusion of
evidence would result in deterrence is alone insufficient to
justify the exclusion of evidence. See Hudson v. Michigan, 547
U.S. 586, 596 (2006) (stating the existence of deterrence
benefits “is a necessary condition for exclusion,” but not a
“sufficient” one); see also Calandra, 414 U.S. at 350 (stating
the Fourth Amendment does not “require[] adoption of every
proposal that might deter police misconduct”). For this reason,
the Supreme Court has limited the exclusionary rule’s
application to situations where the rule’s deterrence purpose is
“most efficaciously served.” United States v. Leon, 468 U.S.
897, 908 (1984). Thus, “[w]here suppression fails to yield
‘appreciable deterrence,’ exclusion is ‘clearly . . .
unwarranted.’” Davis, 564 U.S. at 237 (quoting United States
v. Janis, 428 U.S. 433, 454 (1976)).
The calculus is simple: The suppression of evidence that
is otherwise probative and reliable results in “substantial social
costs.” Leon, 468 U.S. at 907. “The principal cost of applying
the rule is, of course, letting guilty and possibly dangerous
defendants go free—something that offends basic concepts of
the criminal justice system.” Herring, 555 U.S. at 141.
Furthermore, if applied indiscriminately, courts run the risk of
“generating disrespect for the law and administration of
justice.” Stone, 428 U.S. at 491. Society, the Supreme Court
has held, “must swallow this bitter pill” only “as a last resort.”
Davis, 564 U.S. at 237. Therefore, in addition to showing the
suppression of evidence will significantly deter unlawful
behavior in the future, parties arguing for suppression must
overcome the “high obstacle” of the rule’s “costly toll upon
truth-seeking and law enforcement objectives” through
3
demonstrating the benefits of suppression outweigh these
significant costs. Herring, 555 U.S. at 141.
In United States v. Leon, the Supreme Court recognized a
good faith exception to the exclusionary rule for evidence
obtained by law enforcement officers acting in “objectively
reasonable reliance” on a search warrant issued by a “detached
and neutral magistrate” that has ultimately been found to be
invalid. Leon, 468 U.S. at 913, 920–22. The Court explained
“the exclusionary rule is designed to deter police misconduct
rather than to punish the errors of judges and magistrates.” Id.
at 916. Furthermore, “[i]n the ordinary case, an officer cannot
be expected to question the magistrate’s probable-cause
determination.” Id. at 921. Thus, “a warrant issued by a
magistrate normally suffices to establish that a law
enforcement officer has acted in good faith in conducting the
search.” Id. at 922.
The only instances in which the good faith exception does
not apply are when the law enforcement officers are “reckless,”
“dishonest,” or “could not have harbored an objectively
reasonable belief in the existence of probable cause.” Id. at
926; see also Illinois v. Krull, 480 U.S. 340, 348–49 (1987)
(stating “evidence should be suppressed only if it can be said
that the law enforcement officer had knowledge, or may
properly be charged with knowledge, that the search was
unconstitutional”). Accordingly, if a magistrate relies upon a
“bare bones” affidavit that is “so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable,” suppression is appropriate. Leon, 468 U.S. at
923 & n.24. 1 However, the use of such an extreme remedy
1
The Court contends its result is “the same” as Groh v. Ramirez, 540
U.S. 551 (2004), where, the Court claims, “[t]he Supreme Court . . .
found Leon’s objective standard unmet notwithstanding the absence
4
when law enforcement officers have sought a warrant is
extremely rare, and the Supreme Court has only applied the
exclusionary rule to such situations where police conduct was
both intentional and highly culpable. Herring, 555 U.S. at
143–44; see also Davis, 564 U.S. at 240 (stating the Supreme
Court has “never applied the exclusionary rule to suppress
evidence obtained as a result of nonculpable, innocent police
conduct”).
Furthermore, Supreme Court case law makes clear that a
“bare bones” affidavit is one supported only by the “bare
conclusions of others.” Illinois v. Gates, 462 U.S. 213, 239
(1983); see also Nathanson v. United States, 290 U.S. 41, 44–
47 (1933) (invalidating a warrant supported only by an
affidavit stating the officer “ha[d] cause to suspect and [did]
believe that” liquor illegally brought into the United States was
located on certain premises); Aguilar v. Texas, 378 U.S. 108,
109–15 (1964) (invalidating a warrant based solely on an
officer’s statement that he had “received reliable information
from a credible person and [did] believe” that heroin was stored
in a particular home); Giordenello v. United States, 357 U.S.
480, 486 (1958) (striking a warrant issued where the complaint
contained “no affirmative allegation that the affiant spoke with
personal knowledge of the matters contained therein,” failed to
of any reason to suppose that officers acted in bad faith in relying on
an invalid warrant.” Maj. Op. at 24. But Groh cited Leon to hold
“the warrant was so obviously deficient that we must regard the
search as ‘warrantless’ within the meaning of our case law.” See 540
U.S. at 558. Moreover, the Court’s pin cites to Groh include the
Supreme Court explaining why “no reasonable officer could believe”
the warrant at issue was constitutionally sound. See id. at 564–65.
When the Court relies on a case where an officer is found plainly
incompetent—the standard for piercing his qualified immunity—
how can the Court credibly claim it is not passing judgment on the
officers relying on the warrant here? See Maj. Op. at 24.
5
“indicate any sources for the complainant’s belief,” and did not
set forth “any other sufficient basis upon which a finding of
probable cause could be made”). Thus, only where an affidavit
is “so lacking in sworn and particularized information that not
even an order of court [could] have justified [the search]” can
it be properly characterized as bare bones. See Herring, 555
U.S. at 143–44.
B.
The warrant in this case established probable cause for the
search. The affidavit submitted by Detective Giannakoulias
begins by giving the exact address of the apartment to be
searched and describing the building in which it is located. It
then details Detective Giannakoulias’s extensive experience as
a law enforcement officer, including 22 years of service at the
Metropolitan Police Department, formal training in criminal,
death, gang, and narcotics investigations, 10 years of
experience investigating gang-related murders, and the
execution of over 500 search warrants for various drug and
violent crimes. The next 8 pages of the affidavit provide
detailed information of the investigation of the murder of Mico
Briscoe—a crime that took place over a year before police
sought the current search warrant—and Ezra Griffith’s
connection to the crime.
The affidavit described the murder and the existence of
video footage capturing a gold, four-door sedan leaving the
scene of the crime with two murder suspects in it. It then
described the police’s efforts to identify and locate the car
captured by the surveillance footage, which eventually led
them to Ms. Jesimenia Queen—Griffith’s mother—who they
then interviewed about the car and its connection to the Briscoe
murder. Queen confirmed the car used to belong to her and
was used exclusively by Griffith, “a validated member” of the
6
“E Street Bangaz” gang. App’x 30–31. After he became aware
of this interview, Griffith made jail house calls to numerous
people, including his mother, his grandmother, Dwayne Hilton,
and Sheree Lewis. These calls often discussed the police
interview about the car and its association with the Briscoe
murder. 20 days after making these calls, Griffith was released
from prison, and police were eventually able to locate his
address as being with Lewis at the location for which they
sought a warrant.
Only after providing all of these details did Detective
Giannakoulias rely on his training and experience to assert that
gang members maintain regular contact with each other, even
while incarcerated, and they discuss criminal activities through
phones or other electronic devices. The affidavit ends by
requesting the seizure of:
all electronic devices to include but not limited
to cellular telephone(s), computer(s), electronic
tablet(s), devices capable of storing digital
images (to include, but not limited to, PDAs,
CDs, DVD’s jump/zip drives), evidence of
ownership of such devices, subscriber
information relating to the electronic devices,
any information describing, referencing, or
mentioning in anyway the [shooting death of
Mico Briscoe], any handwritten form (such as
writing to include but not limited to notes,
papers, or mail matter), photographs,
newspaper articles relating to the shooting death
of Mico Briscoe, and any indicia of occupancy
of the premises described above.
App’x 36. After reviewing Detective Giannakoulias’s
affidavit, a magistrate from the Superior Court of the District
7
of Columbia determined that it established probable cause and
authorized law enforcement officers to seize the items listed in
the affidavit.
Even if this Court were to assume Detective
Giannakoulias’s affidavit failed to establish probable cause to
search Lewis’s apartment, I can find no discernable basis to
justify the Court’s assertion that the warrant was “so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Maj. Op. at 22. Based on the
affidavit, it was reasonable for the magistrate to conclude
Griffith was either directly involved with the Briscoe murder
or had vital information regarding its commission.
Additionally, the police knew Griffith actively communicated
with both his family and other suspects about the Briscoe
murder while he was incarcerated. These communications
provided concrete facts to support Detective Giannakoulias’s
assertion that gang members share intelligence with each other,
even while incarcerated. Moreover, there was at a minimum a
fair probability that Griffith would continue to have
conversations about the investigation of the Briscoe murder,
given the close proximity of his release from prison with his
last jailhouse call—a mere 20 days. An investigator’s common
sense would also lead him to conclude that Griffith would
speak much more freely and candidly about his involvement in
the Briscoe murder once his communications were not being
monitored by the police. 2 Thus, concrete facts existed from
which investigators could infer Griffith was involved with the
Briscoe murder and was talking to his confederates about it.
2
At numerous points during his jailhouse calls, Griffith begins
discussing the murder and the investigation but quickly changes the
subject so as to avoid making any incriminating statements.
8
In dismissing these logical inferences, the Court focuses
on the fact that the affidavit does not mention Griffith owning
or using a cell phone. But these statements ignore the realities
of the world in which we live and jettison the common-sense
inquiry judges are to make when determining the existence of
probable cause. See Gates, 462 U.S. at 238 (“The task of the
issuing magistrate is simply to make a practical, common-sense
decision whether . . . there is a fair probability that contraband
or evidence of a crime will be found in a particular place.”); see
also United States v. Davis, 617 F.2d 677, 692 (D.C. Cir. 1979)
(stating judges evaluating the existence of probable cause
“need not confine their evaluations within rigorous legalistic
boundaries but instead may use their common sense”). The
Supreme Court has recognized that “a significant majority of
American adults now own [cell] phones.” Riley v. California,
134 S. Ct. 2473, 2484 (2014). This statement is confirmed by
the Pew Research Center, whose research indicates that in 2013
over 90% of American adults owned a cell phone. See Lee
Rainie, Cell Phone Ownership Hits 91% of Adults, PEW
RESEARCH CENTER (June 6, 2013),
http://www.pewresearch.org/fact-tank/2013/06/06/cell-phone-
ownership-hits-91-of-adults/. Furthermore, this number jumps
up to 97% for adults between ages 18 and 34. Id. Thus, the
Court’s assertion that the affiant’s failure to allege that Griffith
owned a cell phone somehow resulted in a bare bones affidavit
devoid of any indicia of probable cause that Griffith did, in fact,
own a cell phone is “[p]ure applesauce.” King v. Burwell, 135
S. Ct. 2480, 2501 (2015) (Scalia, J., dissenting).
While the Court is, admittedly, on firmer grounds when
assessing the warrant’s shortfalls as to other electronic devices,
this is an issue of breadth, not whether there was any indicia of
probable cause, and this Court has never refused to apply the
good faith exception because a warrant was overbroad. On the
contrary, this Court’s previous approach has been to “decline
9
to order the suppression of the evidence seized pursuant to” a
warrant “we conclude[d] . . . was overly broad” so long as the
law enforcement officers “reasonably relied on the warrant in
good faith.” United States v. Maxwell, 920 F.2d 1028, 1034
(D.C. Cir. 1990). In United States v. Maxwell, this Court
applied the good faith exception to a fatally overbroad warrant
authorizing the seizure of all of the following:
any and all seals representing or appearing to
represent any agency of the United States; any and all
writings and documents representing or appearing to
represent any agency of the United States; any
interstate or foreign correspondence, handwritten
notes, carbons, bank records, negotiable instruments,
logs, ledgers, address books, travel documents,
memoranda or notations pertaining to interstate or
foreign commerce; transmissions made pertaining to
interstate or foreign commerce; any and all documents
generated in connection with or evidencing a scheme,
artifice or devise of transactions in interstate or
foreign commerce; any electronic memory
equipment, materials, tapes, records, discs, discettes
or any other medium used to store information
pertaining to interstate or foreign commerce; all
machinery, equipment, or transmitting devices used or
capable of being used to send via interstate or foreign
commerce: sounds, signals, pictures, or writings
transmitted by wire for the purpose of executing such
scheme or artifice.
Id. at 1033. Comparing the Maxwell warrant to the one at issue
in this case, I see no discernable reason why one falls within
the good faith exception and the other does not. If anything,
the warrant at issue in this case is much narrower. While the
Maxwell warrant essentially allowed police to seize “all or
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virtually all of [the defendant’s] business records and
equipment,” id., the warrant in this case is essentially limited
to any electronic devices owned or likely to be used by Griffith
and capable of electronically communicating or storing
information and any documents relating to the Briscoe murder,
see App’x 36.
Moreover, the warrant in this case did not authorize a
general search of all of Griffith’s records and the files
contained within any electronic devices discovered. On its
face, the warrant only authorized the seizure of the electronic
devices, not a search of their content. As explained by the
government both in its brief and at oral argument, an additional
search warrant was required in order for law enforcement
officers to search within these devices. Gov’t Br. 29–30 &
n.15; Oral Arg. Rec. at 24:40–25:02. These additional
protections show that the officers here were operating in the
real, tech-savvy world and doing their best to adapt available
tools to act within the law, all while investigating an unsolved
murder for which they had few leads prior to connecting
Griffith to the car captured on videotape leaving the scene of
the crime. While this Court seems unconcerned with
handcuffing the ability of police to investigate crimes, our
precedent emphasizes that our probable cause analysis should
reflect a proper “concern[] with [the] realities of administration
of criminal justice.” United States v. Vaughn, 830 F.2d 1185,
1186 (D.C. Cir. 1987).
Equally troubling is the Court’s willingness to cast aside
the vital role an officer’s training and experience play in
establishing probable cause and good faith. The affiant in this
case had 22 years of experience working as a law enforcement
officer and had spent 10 of those years specializing in gang-
related murders. An officer with these credentials should be
entitled to some deference or, at a minimum, not to have his
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reliance on his training and extensive experience maligned as
wholly unreasonable. However, this is precisely what the
Court has done, despite the fact we have repeatedly held an
officer’s training and experience can play a vital role in
establishing probable cause. See United States v. Cardoza, 713
F.3d 656, 661 (D.C. Cir. 2013) (finding an officer’s knowledge
based on his training and experience reinforced finding
probable cause); United States v. Johnson, 437 F.3d 69, 72
(D.C. Cir. 2006) (finding an affidavit based largely on the
affiant’s professional experience to be sufficient to establish
probable cause); United States v. Thomas, 989 F.2d 1252,
1254–55 (D.C. Cir. 1993) (same).
Recognition of the realities of criminal investigations and
common sense seem conspicuously absent from the Court’s
approach. Relying on a series of nonsequiturs, the Court
creates a world in which it is unreasonable to assume Griffith’s
behavior will be similar to 90% of the adult population (i.e. he
will have access to one or more cell phones); inconceivable that
recent hot leads in a stale murder investigation might engender
conversation among gang members who were likely involved
in the killing; and risible to think leads relating to criminal
activity might be found in the call history, texts, or e-mail of
several phones to which Griffith had access, rather than only
on a phone for which he is the listed subscriber. Oddly, the
Court does think the warrant establishes probable cause to
arrest Griffith and subject him to a search incident to arrest and
an inventory booking search, although the same facts are not
sufficient to sustain a search warrant or to demonstrate good
faith on the part of the officers.
The facts of this case illustrate precisely why the good
faith exception is so vital to our Fourth Amendment
jurisprudence. As the Court acknowledges, there is no
indication of bad faith or recklessness on the part of these
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officers. They were diligently trying to build their case, relying
on the limited—but promising—evidence available to them.
Their investigation into the Briscoe murder—a crime that had
occurred over a year before they sought the warrant to search
Griffith’s apartment—had reached a lull until they discovered
Griffith’s car and connected it to him. Once they made this
connection, they did not act rashly or hastily by attempting to
coerce a confession out of Griffith but instead approached their
investigation in a methodical and deliberate manner in order to
discover the truth. They collected evidence by interviewing
Griffith’s mother and reviewing his jailhouse calls. After
coming to the conclusion that Griffith was probably involved
in the Briscoe murder and that their recent investigatory
progress might trigger a desire to communicate with the other
suspects, they sought a warrant to obtain any devices which
might contain incriminating statements from Griffith or other
leads. Thereafter, they planned to obtain yet another warrant
to authorize them to search any electronic devices they seized.
Nothing in the facts suggest they sought to deceive the
magistrate or that they did anything other than present the
limited evidence they had in hopes that it would establish
probable cause. Once the magistrate held their evidence
sufficient, they relied upon that determination to search the
apartment, and they did so in a way that complied with the
law—i.e. knocking and announcing before entering and
limiting their search to the confines of the warrant. The search
confirmed their instincts were good. They recovered six cell
phones and an electronic tablet—certainly an atypical number
of phones for a household consisting of two adults. In the
process of conducting the search, they discovered Griffith was
guilty of another crime: unlawfully possessing a firearm.
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II.
And that is perhaps the most troubling part of this case at
the end of the day. There is no doubt that Griffith is guilty of
the crime for which he has been convicted. By suppressing the
gun Griffith unlawfully possessed, the Court is going to
“offend[] basic concepts of the criminal justice system” by
allowing a “guilty and possibly dangerous defendant[] go free.”
Herring, 555 U.S. at 141. And they are allowing this to happen
not because the police intentionally violated the law or acted in
a highly-culpable manner, but rather because the police relied
upon a neutral and detached magistrate who determined
probable cause existed. This result is directly contrary to the
purpose of the exclusionary rule and Supreme Court precedent
that reserves suppression only for the most serious police
misconduct. If courts are going to impose a remedy as extreme
as excluding evidence that is probative, reliable, and often
determinative of a defendant’s guilt, we have a duty to protect
officers who are doing their best to stay within the bounds of
our ever-evolving jurisprudence. We live in a society where
virtually every action an officer takes is now being heavily-
scrutinized. Thus, the need for vindication when law
enforcement officers behave in an exemplary fashion is more
critical than ever. Unfortunately, the officers in this case are
not going to get the vindication they deserve. Furthermore, I
have no doubt this case will be used in future cases to further
undermine the good faith exception until either this Court
sitting en banc or the Supreme Court steps in to cure today’s
grievous error. Accordingly, I respectfully dissent.