E.D.Tenn.: The day after Riley, Davis GFE saves a warrantless cell phone search despite no controlling case; this is just wrong

In February, the USMJ found the warrantless search of defendant’s cell phone unreasonable, but in Davis good faith [despite the lack of controlling law in support?]. The day after Riley, the USDJ finds that the search of a cell phone was still valid because of Davis good faith. [Yet, not one case is cited as binding precedent that was followed.] United States v. Clark, 2014 U.S. Dist. LEXIS 86807 (E.D. Tenn. June 26, 2014), R&R 2014 U.S. Dist. LEXIS 87081 (E.D. Tenn. February 18, 2014):

Regardless, Defendant agrees with Magistrate Judge Lee’s finding regarding the unconstitutional search, and Defendant’s objection relates to Magistrate Judge Lee’s application of the exclusionary rule and the good faith exception. (Doc. 24). Specifically, Defendant argues that there is no established basis for Officer Narramore’s belief that a warrant was not required to search Defendant’s cell phone, and that suppressing any evidence found in Defendant’s phone is the proper remedy under the exclusionary rule.

Despite Defendant’s objection, the Court agrees with Magistrate Judge Lee’s finding that a good faith exception to the exclusionary rule applies to the instant case.

As Magistrate Judge Lee thoroughly discusses in her Report and Recommendation, the Court is bound by the longstanding limitations of the suppression remedy set forth by the United States Supreme Court. See Davis v. United States, 131 S. Ct. 2419, 2426-27 (2011) (“Where suppression fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly … unwarranted.'”); Herring v. United States, 555 U.S. 135, 140 (2009) (“exclusion [of evidence] has always been our last resort, not our first impulse”) (internal quotation omitted); United States v. Leon, 468 U.S. 897, 919-20 (1984) (“In short, where the officer’s conduct is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that … the officer is acting as a reasonable officer would and should act in similar circumstances.”) (internal quotations omitted); U. S. v. Peltier, 422 U.S. 531, 542 (1975)

(“If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search 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 under the Fourth Amendment.”). Based on these limitations, suppression of evidence is only appropriate in certain circumstances in which unlawful police conduct would then be deterred. Accordingly, if Officer Narramore was objectively reasonable in believing that the search was constitutional, the evidence should not be suppressed.

In reviewing the record of this case, the Court finds Defendant’s objection to be without merit. While Defendant argues that Officer Narramore’s belief that he did not need a warrant to search Defendant’s phone was unreasonable, Magistrate Judge Lee arrived at the conclusion that the belief was reasonable after hearing Officer Narramore’s testimony and evaluating his credibility. Magistrate Judge Lee also noted that, even though Officer Narramore’s belief was objectively reasonable, such a course of action was “troubling” to her given the “relative ease of asking for either consent or a warrant.” See Doc. 23 at 15.

It has long been the practice of our judicial system to leave credibility determinations to the fact finder best equipped to make those determinations. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 565 (1985);United States v. U.S. Gypsum Co., 333 U.S. 364, 394 (1948) (“The practice in equity prior to the present Rules of Civil Procedure was that the findings of the trial court, when dependent upon oral testimony where the candor and credibility of the witnesses would best be judged, had great weight with the appellate court”). Although the Court agrees that Officer Narramore’s conduct was certainly not a best practice, given the state of the law on this issue when the search was conducted and Magistrate Judge Lee’s superior position to make a credibility determination regarding Officer Narramore’s testimony, the Court sees no reason to disturb Magistrate Judge Lee’s finding that the Officer’s testimony was reasonable. Thus, Defendant’s objection will be OVERRULED.

This is just wrong. Davis good faith is premised on binding authority to the contrary being followed by the officer, and, here, nothing is cited. In other words, even the litigant raising the issue doesn’t prevail because of expansion of good faith. This is a complete perversion of Davis, but one that Davis should foreclose.