NE: Cell phone SW was overbroad for “[a]ny and all information” but still saved by GFE

The state relied at trial on search incident to justify a search of a cell phone, and Riley was decided while the appeal was pending, and it applies. There were no exigent circumstances for a search of the phone. But, a search warrant was also issued for the phone. Probable cause existed for the warrant, but the warrant was overbroad for “[a]ny and all information” on the phone. Nevertheless, the warrant was executed in good faith. The wallpaper picture when the phone came on was a known gang member [which caused a mistrial motion that was denied] and text messages were offered to show their effect on defendant, not for the truth of the matter asserted. State v. Henderson, 289 Neb. 271, 2014 Neb. LEXIS 162 (October 17, 2014):

Henderson claims that the district court erred when it overruled his motion to suppress evidence obtained from the search of his cell phone and when it admitted evidence obtained from the allegedly illegal search of the cell phone. We determine that the search was not justified as a warrantless search incident to arrest and that there was probable cause to issue the warrant, but that the scope of the search warrant lacked particularity and was too broad to protect privacy interests in the contents of the cell phone. However, we conclude that the search was conducted in good faith reliance on the warrant and that therefore, the district court did not err when it overruled the motion to suppress and when it admitted evidence obtained from the search.

. . .

We have said that the “‘good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite a magistrate’s authorization.'” Id. at 542, 811 N.W.2d at 245. Officers are assumed to “‘have a reasonable knowledge of what the law prohibits.'” Id. In assessing the good faith of an officer’s conducting a search under a warrant, an appellate court must look to the totality of the circumstances surrounding the issuance of the warrant, including information not contained within the four corners of the affidavit. Id.

In connection with the inquiry just noted, there is no indication in this case that the officers would reasonably have known of the defects in the warrants as authorized. Further, there is no indication that the police used the warrant to conduct a search for evidence other than that related to the shootings investigation. The evidence that the officers obtained and that the State offered at trial was limited to evidence that was relevant to the shootings under investigation and that would have been found pursuant to a properly limited warrant.

Circumstances that might require suppression despite a good faith execution are not present here. There is no indication that the issuing court was misled by false information in the affidavit, that the issuing court wholly abandoned its judicial role, or that probable cause was obviously lacking. As we discussed above, the affidavits provided probable cause and, therefore, it was not unreasonable for officers executing the warrants to presume them to be valid. And although the warrants contained language that made them too broad to satisfy the particularity requirement, they also contained references to specific items that did not make the warrants so facially deficient that the officers could not reasonably presume them to be valid and the search legal. We conclude that the good faith exception applies to this case.

(c) Conclusion

We determine that although the scope of the search warrants was not properly limited in compliance with the particularity requirement of the Fourth Amendment, the issuance of the warrants was reasonable and the warrants were carried out in good faith. We further note that the State did not offer evidence that would not have been discovered pursuant to a sufficiently limited search warrant. Although our reasoning differs from that of the district court, we conclude that the district court did not err when it overruled the motions to suppress or when it admitted evidence obtained from the search over Henderson’s Fourth Amendment objections.

Note: It appears from the opinion that only the one picture and some text messages were admitted, at least that’s all that’s discussed. Maybe the phone was far more intensely searched, but it didn’t produce anything else relevant for the case. Also, remember that United States v. Leon, 468 U.S. 897, 923 (1984), recognized overbreadth as an exception to good faith.

Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i. e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, post, at 988-991.

But, case law since shows that it’s hardly an ironclad rule. These aren’t the best facts for a cert petition, but it’s worth a shot.