N.D.Tex.: Pre-Riley search incident of cell phone saved by Davis GFE

Pre-Riley search incident of cell phone was valid in the Fifth Circuit under the Davis good faith exception. The defendant’s trial concluded eight days before Riley was decided, and he raised the issue. United States v. Spears, 2014 U.S. Dist. LEXIS 94968 (N.D. Tex. July 14, 2014):

At the time the Supreme Court decided Riley, Spears’s conviction was not final. Thus, the decision in Riley applies retroactively to his case. See Davis, 131 S. Ct. at 2431. As such, the Court concludes that the warrantless search of Spears’s cell phone incident to his arrest violated the Fourth Amendment. This raises the question of whether the evidence should have been suppressed.

Spears contends that the suppression remedy applies to the photographs obtained from the warrantless search of his cell phone. See Mot. New Trial 4, ECF No. 72. On this point, the Court disagrees. The sole purpose of the exclusionary rule is to deter culpable law enforcement conduct. Davis, 131 S. Ct. at 2432-33. The Supreme Court has never applied the exclusionary rule “to suppress evidence obtained as a result of nonculpable, innocent police conduct.” Id. at 2429. In Spears’s case, the officer performing the search relied upon binding Fifth Circuit precedent, and Spears does not contend that the officer performing the search acted in bad faith or was culpable in any way. The officer who performed the search did not violate Spears’s Fourth Amendment rights “deliberately, recklessly, or with gross negligence.” Id. at 2428.

Arguably, when the officer searched Spears’s cell phone in January 2014, the Fifth Circuit’s holding was losing steam, as evidenced by the circuit split. See Br. Resp’t at 12-13, Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014) (No. 13-132). Indeed, at least one Fifth Circuit panel expressed apprehension as to the effect of Arizona v. Gant on Finley. See Curtis, 635 F.3d at 712-13. But see Rodriguez, 702 F.3d at 209-210. Nevertheless, until the Supreme Court decided Riley, Finley remained good law in the Fifth Circuit. Police officers cannot be required to anticipate shifts in the constitutional landscape or to stay abreast of legal commentary. “About all exclusion would deter in this case is conscientious police work.” Davis, 131 S. Ct. at 2429. For these reasons, the Court concludes that the admission of the photographs from the warrantless search of Spears’s cell phone incident to his arrest was proper.

IV.

Alternatively, the Court finds that any error committed in admitting the photographs was harmless. …