CA11: Cell phone search mistakenly without a warrant still saved by GFE

Defendant was convicted of Hobbs Act robbery, and his cell phone was used against him after it was left in the borrowed getaway car. The cell phone was searched mistakenly without a warrant. When the officer discovered he forgot a warrant, he applied for a warrant and told the judges involved that’s what happened. The good faith exception applies to this warrantless search. (Also, CSLI obtained under existing law two weeks before Carpenter was valid.) United States v. Turner, 2022 U.S. App. LEXIS 25614 (11th Cir. Sep. 13, 2022):

Turner also argues the good-faith exception is inapplicable here because Detective Breedlove “recklessly” asked Sergeant Power to search the phone without a valid warrant. But the district court found that Detective Breedlove “made a mistake and attempted to rectify it.” Thus, the court concluded that police acted in “good faith” and “the Fourth Amendment exclusionary rule [did not] require[] any further activity to incent these police officers who know quite well how to conduct themselves.” Reviewing this finding for clear error and in the light most favorable to the government, we agree. Upon realizing that he had failed to have the warrant signed by a judge, Detective Breedlove immediately notified Sergeant Power of the mistake. The same day, he explained what happened before a state court judge who then signed the warrant. Thus, we agree that Detective Breedlove acted in good faith rather than “some sort of strategic action.” Based on this finding, we affirm the district court’s denial of Turner’s motion to suppress. See Leon, 468 U.S. at 922.

Notably, abandonment isn’t even relied on, but it should have been. By avoiding discussion of abandonment, the court can instead elevate the good faith exception above the Fourth Amendment. Remarkable: No warrant whatsoever saved by the good faith exception to the warrant requirement. (First, this is also an unsigned per curiam. Whoever is trying out for SCOTUS should fess up. Second, remember all the news comments in the last two weeks about how conservative the Eleventh Circuit is?)

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