CA6: District Court’s limited record prevents finding cell phone search was reasonable or inevitable discovery or GFE applied

Defendant was found passed out in a car. Defendant’s cell phone was seized as evidence, apparently of how he almost OD’d. An accidental glimpse at defendant’s phone revealed a thumbnail of potential child pornography. The district court applied the wrong standard for applying Riley and inevitable discovery and even the exclusionary rule and good faith exception, and the case is remanded. United States v. Evans, 2019 U.S. App. LEXIS 24895 (6th Cir. Aug. 21, 2019):

Because it applied the wrong Fourth Amendment standard, the district court never decided the legitimacy of Alvord’s conduct under Riley. Nor did the court rule on the applicability of the good-faith doctrine under McClain or Herring. The district court did rule on inevitable discovery. But the court raised the issue sua sponte, without developing a record sufficient for us to decide whether the relevant evidence would, in fact, have been inevitably discovered. We do not know, for example, whether any child pornography was embedded in the “text messages” and “emails” that the police were plainly authorized to search for evidence of drug trafficking or, similarly, whether their ability to search for other items, such as “names” or “contacts,” would have allowed the police to inspect the phone’s photo gallery. Indeed, we do not know where on the phone the images were stored. Nor do we know whether the police would have requested a broader warrant to search for evidence of drug trafficking absent the discovery of child pornography on Evans’ phone. In our view, the outcome of the inevitable-discovery analysis turns on these factual issues.

The limited record also inhibits our ability to decide the Fourth Amendment and good-faith questions in the first instance. In Riley, the Supreme Court acknowledged that “specific concerns about the potential loss of evidence in a particular case” could justify intrusions into a phone based on an “exigent circumstances” rationale. 573 U.S. at 391. The Court indicated that such intrusions could require a “few necessary steps,” and that courts should review the reasonableness of those steps under Illinois v. McArthur, 531 U.S. 326 (2001), which “approved officers’ reasonable steps to secure a scene to preserve evidence while they awaited a warrant.” Riley, 573 U.S. at 391. The steps Alvord took to enable airplane mode via the settings application would seem to require scrutiny under McArthur. But McArthur outlined a fact-intensive, multi-factor analysis for which the current record is altogether unsuited.

Holes in the record would likewise complicate a good-faith analysis under this court’s decision in McClain. McClain held that the good-faith exception, derived from United States v. Leon, 468 U.S. 897 (1984), “can apply in a situation in which the affidavit supporting the search warrant is tainted by evidence obtained in violation of the Fourth Amendment.” 444 F.3d at 565.3 McClain limited its holding to circumstances where “the facts surrounding the initial Fourth Amendment violation were ‘close enough to the line of validity'” to make reliance on the warrant “objectively reasonable.” Id. at 566 (quoting United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989)). And McClain suggested that an “important[],” though perhaps not dispositive, factor in its analysis was that “the officers who sought and executed the search warrants were not the same officers who performed the initial warrantless search.” Id. Here, we know that Alvord both engaged in the initial intrusion into Evans’ phone and secured the warrant. But did Alvord participate in the execution of that warrant? We do not know. All we know is that the Mentor Police Department and the FBI were involved.

Under these circumstances, it is appropriate for us to remand to the district court. …