W.D.Va.: Reasonable inference cell phone was used to set up meeting for sex with minor to get SW for phone

It was reasonable to infer that defendant’s cell phone was involved in defendant’s effort to set up a rendezvous for setting sex with a minor, so the search warrant for the phone was issued on probable cause. Even so, the good faith exception applies. United States v. Thomas, 2016 U.S. Dist. LEXIS 174244 (W.D.Va. Dec. 15, 2016):

Nevertheless, the court concludes that the Leon good faith exception applies in this case. At the time he submitted the affidavit, Detective Coleman knew that the LG cell phone played a role in the aggravated sexual battery offense listed in his affidavit. During his investigation, Detective Coleman learned from the victims’ mother that Thomas had called her several times in an attempt to set up another rendezvous with her children and left her multiple voicemail messages. Although Detective Coleman’s affidavit itself provides no link between the use of the LG cell phone and the crime, it is uncontroverted that Detective Coleman knew that Thomas used a phone in furtherance of his criminal conduct. Detective Coleman reasonably could infer that the LG cell phone seized at Thomas’ arrest was the phone that Thomas used to call the victims’ mother just a few months earlier. Thus, it is clear that Detective Coleman ‘harbored an objectively reasonable belief in the existence’ of this factual predicate,” United States v. McKenzie-Gude, 671 F.3d 452, 458-59 (4th Cir. 2011) (quoting Leon, 468 U.S. at 926), linking Thomas’ phone to the aggravated sexual battery. It cannot be said here that Detective Coleman relied on “an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923. As was the case in McKenzie-Gude, “Leon presents no barrier to holding that the experienced officer[] in this case, who swore out the affidavit and executed the search, acted with the requisite objective reasonableness when relying on uncontroverted facts known to [him] but inadvertently not presented to the magistrate.” McKenzie-Gude, 671 F.3d at 460.