CA6: SW for CP was completely lacking and GFE didn’t apply; no basis at all to search cell phone

A state search warrant was issued for alleged child porn on defendant’s computer and cell phone, and the district court suppressed for a clear lack of probable cause. The computer search required too many inferences to make probable cause. The cell phone search had no connection at all. Suppression affirmed. The affidavit was bare bones, and the good faith exception did not apply. United States v. Sanchez, 2021 U.S. App. LEXIS 3235 (6th Cir. Feb. 4, 2021):

The district court did not err by concluding that the good-faith exception was not applicable to the state warrants because they were based on barebones affidavits. As the district court concluded, there were no facts in Barker’s affidavit to suggest that Sanchez’s computer would contain evidence of the crime being investigated—the continuous sexual abuse of a child. In fact, there was no allegation that the pornography Sanchez viewed involved children or that Sanchez showed it to the victim to further the alleged sexual abuse. The government argues that the warrant to search Sanchez’s computer corroborated one victim’s claim that Sanchez watched pornography in her presence, which then would provide evidence of the crime being investigated. But to establish a connection between searching the computer for pornography and corroborating the victim’s claim “would require a number of inferences … in order to support objectively reasonable reliance by an officer.” United States v. Laughton, 409 F.3d 744, 750 (6th Cir. 2005). Merely having pornography on the computer would not corroborate the claim. Instead, the pornography would have to have been viewed or downloaded at a time corresponding to when Sanchez babysat the victims. That possible connection was not explained and would not be apparent to a reasonable officer on the face of Barker’s affidavit.

Further, Barker’s affidavit did not mention that the victim made any statement regarding Sanchez’s use of a cellphone, yet Barker requested that Sanchez’s cellphones be seized and later requested that the contents of those phones be searched. The government asserts that the state warrants for Sanchez’s cellphones, including the call history, text messages, pictures, and files, were requested to search for evidence of his planning and opportunity to sexually assault the child victims, and the district court acknowledged that this was a “plausible explanation” as to why a search for evidence of continuous sexual abuse of a child would include electronic devices. The district court concluded, however, that the government’s “rationalization c[ould] not cure the lack of probable cause in the affidavits.” True, Sanchez’s electronic devices could have contained evidence of Sanchez grooming his victims or the babysitting arrangements between Sanchez and A’s mother, as the government argued in its response to the motion to suppress. However, the affidavit noted that it had already been confirmed that Sanchez babysat A while A’s mother was at work. More importantly, the affidavits in support of the state search warrants simply did not themselves contain the explanation that the government later set forth for the necessity of seizing and searching Sanchez’s cellphones. “[T]he good faith exception to the exclusionary rule does not permit consideration of information known to a police officer, but not included in the affidavit, in determining whether an objectively reasonable officer would have relied on the warrant.” Laughton, 409 F.3d at 752. A reasonably well-trained officer would therefore have known the search of Sanchez’s electronic devices was not supported by probable cause. Consequently, the good-faith exception did not apply to the state warrants.

. . .

Here, the district court properly concluded that the affidavits setting forth the probable cause for the state warrants were bare bones. Accordingly, the state search warrants were so lacking in factual support that the belief that probable cause existed to support a search of Sanchez’s electronic devices was objectively unreasonable to any well-trained officer, including a federal agent.