N.D.Cal.: Cursory look at cell phone that revealed nothing doesn’t preclude PC for SW

A cursory search of a codefendant’s phone produced nothing and a cursory look at defendant’s phone didn’t either. That does not, however, preclude a finding of probable cause to believe that there was evidence on the phone for a search warrant. United States v. Petrov, 2016 U.S. Dist. LEXIS 156430 (N.D.Cal. Nov. 9, 2016):

Petrov also seeks to suppress the fruits of the search of his cell phone, contending it constituted an unauthorized warrantless search. The government responds that Petrov consented to the general search of his cell phones — a fact Petrov vehemently disputes — but even so, that the search warrant in fact authorized the search of his phones. This order need not (and does not) resolve the factual dispute concerning whether Petrov consented to the general search of his phone because the search warrant authorized the search of mobile phones that had been used as a means to commit the crimes allegedly committed by Colon.

Petrov argues that the FBI handed Petrov’s phone off to Officer Chan because they had concluded the phones would be of no use in the cybercrime investigation of Colon, relying on Agent Cahoon’s fruitless search of Petrov’s phone. But Special Agent Cahoon’s declaration does not show that he concluded that Petrov’s phones had never been used in connection with Colon’s cybercrimes; it only shows that he failed to discover any such evidence during his search of one of those phones. Nothing precluded the possibility that evidence linking Petrov’s phones to Colon’s cybercrimes could be found upon a deeper search. Indeed, the fact that Special Agent Cahoon’s initial review failed to uncover the evidence sought to be suppressed now shows that his review was not comprehensive. Moreover, it had already been established that Petrov in fact used one of his phones to communicate with Colon, underscoring the possibility that a search of his phone could have yet proven fruitful in executing the warrant.