CA11: SW for iCloud account from before crime even occurred sustained on good faith

Defendant’s cell phone was used to arrange a robbery. A search warrant was also obtained for defendant’s backup iCloud account before the robbery even occurred, and there was no probable cause for that. Yet, the Eleventh Circuit [some would say astonishingly] sustains the iCloud search on good faith. United States v. McCall, 2023 U.S. App. LEXIS 28655 (11th Cir. Oct. 27, 2023):

This appeal requires us to decide how the exclusionary rule’s good faith exception applies to the search of a cloud storage account. While losing in a high-stakes poker game, Kevin McCall allegedly used his cell phone to arrange an armed robbery to reclaim his losses. Because a cell phone was directly tied to the crime, no one disputes that there was probable cause to search that device. But the police went one step further. They secured a warrant to search an iCloud account that backed up the phone twelve hours before the poker game and robbery. The iCloud warrant permitted a search of almost all the account’s data with no time limitation. Based on evidence secured by that warrant, the government prosecuted and a jury convicted McCall of being a felon in possession of a firearm.

Given the warrant’s breadth and the account’s indirect link to the crime, McCall argues that the district court should have suppressed the iCloud evidence for three reasons. First, he argues that the warrant affidavit was so lacking in indicia of probable cause that no reasonable officer would believe that he had probable cause to search the iCloud account. Second, he argues that the warrant was so facially deficient in its particularity that the executing officers could not have reasonably presumed it to be valid. And third, as a catchall, he argues that the warrant and its supporting affidavit were so defective that the executing officer’s reliance on the warrant was objectively unreasonable.

Although Fourth Amendment standards are largely settled, their application to developing areas of technology is not. Like judges, law enforcement officers operating in good faith may struggle to apply existing standards to new circumstances. That is where the exclusionary rule’s good faith exception comes in. The government concedes that the iCloud warrant fell short in certain respects, but it argues that reasonable officers could have believed it to be valid. We agree that the warrant was not so deficient in probable cause, particularity, or otherwise that it would be unreasonable for an officer to rely on it in good faith. Accordingly, we affirm.

“[R]easonable officers could have believed it to be valid.” Close enough.

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