Cellphone video voyeur warrant did not show enough to search defendant’s home

Defendant used a cellphone at work to take a picture of a minor’s private area, and the police extrapolated from that that they should get a warrant for his place of business and his home. A Rhode Island trial judge found no nexus between the use of the cellphone and a search of the defendant’s business and home and suppressed the search, noting also that RI has still not adopted the good faith exception. The search in fact turned up evidence of an “unsavory” nature, but the court reminded the state that the product of the search cannot be used to justify it. State v. Byrne, 2007 R.I. Super. LEXIS 163 (November 5, 2007):

The Fourth Amendment was forged from the flames of rebellion that led the colonial settlers in Rhode Island and other colonies to resist the arbitrary rule of royal tyranny. See 1 John Wesley Hall, Search and Seizure §§ 1.5, 1.6 (3d ed. 2000); James J. Tomkovicz, Technology and the Threshold of the Fourth Amendment: A Tale of Two Futures, 72 Miss. L.J. 317, 325 (2002). Since then, this limitation on government authority has become a revered landmark of our nation’s laws and culture. Modern society is mesmerized by media images captured by technological innovations not imagined when the framers put quill to parchment. Photographic and data storage technology has advanced to the point where it is within anyone’s grasp–literally–to capture digital images with palm-sized cameras and cell phones, and quickly and quietly store them on personal computers for private viewing or public distribution.

The proliferation of these devices and the elusiveness of the images captured and stored on these devices pose unique challenges to privacy rights and law enforcement. Seven years ago, two commentators wrote, “[t]he future surely will bring more legal cases involving video voyeurism, as technology becomes smaller, more affordable, and easier to use.” Clay Calvert & Justin Brown, Video Voyeurism, Privacy, and the Internet: Exposing Peeping Toms in Cyberspace, 18 Cardozo Arts & Ent. L.J. 469, 568 (2000). This case proves the accuracy of that prediction. Nonetheless, the challenges presented by media technology neither permit nor require a departure from the bedrock principles enshrined in the Fourth Amendment. Notwithstanding the disturbing actions allegedly committed by the defendant, this case is a reminder that the Fourth Amendment stands its ground in the face of new technology and condemnable behavior.

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On the other hand, search warrants issued upon affidavits that wholly failed to reference the location to be searched or failed to link the property to be seized with the location to be searched have later been found to lack probable cause. In a particularly relevant case, the United States Court of Appeals for the Fourth Circuit considered a challenge to the nexus requirement brought by a defendant whose residence was searched in accordance with a warrant in spite of the fact that neither the affiant nor the police informants stated that the contraband searched for was to be found at the defendant’s residence. See United States v. Lalor, 996 F.2d 1578, 1579-80 (4th Cir. 1993). In fact, the affidavit did not provide facts alleging that the defendant’s criminal actions occurred at or near his residence. See id. at 1582-83. Consequently, the court found the affidavit lacked probable cause to issue a warrant. See id. at 1583. Similarly, in United States v. Schultz, the United States Court of Appeals for the Sixth Circuit considered a situation in which an informant under arrest for drug related activity identified the defendant as his drug supplier. 14 F.3d 1093, 1096 (6th Cir. 1994). Subsequent police investigations and observations of the defendant failed to yield evidence of any illegal activity by the defendant. See id. Importantly, the informant, the only person to have alleged that the defendant was involved in criminal activity, made no mention of safe deposit boxes for which a warrant was issued. See id. Consequently, the court found a “lack of evidentiary nexus in this case, prior to the search, between the safe deposit boxes and any criminal activity.” Id. at 1097.

This nexus between the property searched for and the location to be searched is critical with respect to the search warrant issued for Byrne’s residence. This Court cannot consider the items seized from Byrne’s residence, unsavory as they are, in determining whether probable cause existed. See Joseph, 337 A.2d at 527. Rather, the Court can and must turn only to the affidavit submitted by Camara. That affidavit provides great detail regarding the actions purportedly taken by the defendant at the coffee shop. However, the facts contained in the affidavit do not implicate Byrne’s residence in any way. In fact, the affidavit is almost entirely devoid of any reference to Byrne’s residence. …

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Moreover, the Court is not inclined to follow the novel reasoning presented by the State during oral arguments: “one man’s speculation … is another man’s reasonable inference.” (Tr. 13). The application of our laws is not, and should not be, so fickle. …