M.D.Fla.: A CP SW for “‘computers’ and related material” includes a cell phone and SD card

A search warrant for child pornography for “‘computers’ and related material” permitted a search of a cell phone and an SD card found during the search. At the minimum, their search was in objective good faith. United States v. Tatro, 2016 U.S. Dist. LEXIS 70583 (M.D.Fla. May 31, 2016):

Further, the Court finds that the language of the Search Warrant permitted the search and seizure of the Cell Phones and SD Card. Indeed, the terms “pocket computer” and “computer storage media” encompass cell phones, as modern cell phones are mini computers that have “immense” storage capacity. See Riley v. California, 134 S. Ct. 2473, 2489, 189 L. Ed. 2d 430 (2014); United States v. Wurie, 728 F.3d 1, 8 (1st Cir. 2013); U.S. v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012); United States v. Phillips, 9 F. Supp. 3d 1130, 1141 (E.D. Cal. 2014).¹⁰ Additionally, in the Court’s view, the terms “computer storage media” and “computer related storage devices,” which include “storage which can be accessed by computers to store or retrieve data or images of child pornography,” adequately cover the SD Card. Thus, the Agents were authorized to search the New Cell Phone and its SD Card. See United States v. Hendley, No. 1:14-cr-453-ODE-JSA, 2015 U.S. Dist. LEXIS 161726, 2015 WL 7779215, at *4 (N.D. Ga. Dec. 1, 2015) (stating that, when a warrant authorizes agents to “look for digital evidence of child pornography,” “logic dictates that searching for digital files would require agents to access repositories that store digital information, including cell phones”).

10. While these cases discuss modern cell phones in the context of a search incident to arrest, the Court finds persuasive their language regarding the capabilities of modern cell phones and their comparability to computers.

In any event, the Court is persuaded that the search and seizure of the Cell Phones and SD Card were adequately protected by the good faith exception and the inevitable discovery doctrine. In the case of an overbroad search warrant, evidence obtained during execution of the search warrant will not be excluded when law enforcement officers “act in the ‘objectively reasonable belief that their conduct does not violate the Fourth Amendment'” (“Good Faith Exception”). U.S. v. Travers, 233 F.3d 1327, 1329 (11th Cir. 2000) (quoting United States v. Leon, 468 U.S. 897, 918, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). Pursuant to the Good Faith Exception, “evidence obtained in violation of the Fourth Amendment by officers acting in objectively reasonable reliance on a search warrant [that fails to meet the particularity requirements of the Fourth Amendment] issued by a neutral and detached magistrate need not be excluded, as a matter of federal law, from the case in chief of federal and state criminal prosecutions.” Leon, 468 U.S. at 927 (1984 (Blackmun, J., concurring); accord id. at 924-926 (majority opinion). “In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” Id. at 927 (majority opinion). There is no evidence here that the Agents acted with intentional deceit or in bad faith or that they deliberately exceeded the scope of the Search Warrant. The Agents testified unequivocally that they believed the Cell Phones and SD Card to be covered by the Search Warrant. Thus, the Agents acted in good faith in executing the Search Warrant and the search and seizure of the Cell Phones and SD Card are covered by the Good Faith Exception.