Defendant was a suspect in robberies, and when he was arrested, there was a cell phone at his feet. There was no direct link to the cell phone and the robberies. The affidavit relied on the officer’s experience [of course] that evidence could be found on the phone. Essentially, after a bit of discussion, the court holds that the warrant was relied on in good faith without regard to whether probable cause actually existed. United States v. Rolling, 2024 U.S. App. LEXIS 26433 (6th Cir. Oct. 17, 2024):
The affidavit at issue supported the search warrant for a phone found at Rolling’s feet. This affidavit, prepared by a Wyoming, Michigan police detective, focused on the connections between Rolling, his car, and the previous robberies. It described the process by which detectives linked a silver Ford Taurus to the Honor Credit Union robbery and then to Rolling. It alleged a belief, based on a larger investigation, that Jurl and Rolling were the two suspects in the Honor robbery as well as similar robberies in the area. It detailed the discovery of two recorded “bait” bills in Rolling’s wallet—bills that came from different credit union robberies. And it described the discovery of clothing linked to two robberies in a warrant-backed search of Rolling’s home. It stated that the cell phone to be searched was found on the floorboards of Rolling’s car, below where he was sitting and driving when he and Jurl were arrested on December 2. Finally, the affidavit relied on the detective’s “experience and training,” stating that “cell phone records greatly assist in investigations by showing exact times suspects use their phones before, during, and after commission of crimes.” DE 35-4, Affidavit Supporting Phone Search Warrant, Page ID 94.
This affidavit contains much more linking Rolling and the car to crimes than the sparse “boilerplate” language found insufficient in United States v. Ramirez, the district court case to which Rolling analogizes this one. 180 F. Supp. 3d 491, 493-96 (W.D. Ky. 2016). The question, however, is whether the indicia of criminal activity alleged, in addition to recited statements regarding experience and training, can support probable cause for the further search of a cell phone absent any phone-specific allegations in the warrant application.
Rolling argues that seizing a phone at the time of an arrest, then applying for a warrant to search the phone based on general-purpose allegations that could be made at the time of many arrests, is functionally similar to the warrantless search of a cell phone incident to arrest, which the Fourth Amendment does not permit. Riley v. California, 573 U.S. 373, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). While the point is well taken and appealing at first glance, this Riley-violation-in-slow-motion theory overlooks the legal significance of the intervention by the neutral magistrate before a warrant can issue. Riley itself took care to draw this distinction between warrantless searches and those obtained after application to a “neutral and detached” decisionmaker. Id. at 382 (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948)).
This court has not decided whether the requisite probable cause nexus for a warrant to search a cell phone is only “a fair probability” that “the phone’s data ‘will aid in a particular’ investigation and disclose evidence of criminal activity” or if, instead, the affidavit must make factual allegations that “the phone itself is being used ‘in connection with criminal activity.'” Sheckles, 996 F.3d 330, 338 (citations omitted); United States v. Bass, 785 F.3d 1043, 1049 (6th Cir. 2015) (sufficient nexus alleged when affidavit stated that suspect used cell phones to communicate with co-conspirators and was using the particular phone when arrested); United States v. Merriweather, 728 F. App’x 498, 505 (6th Cir. 2018) (declining to decide correctness of underlying probable cause determination, where affidavit stated that cell phone had been found in car along with drugs at time of arrest). Here, the district court found it “reasonable to infer that a cell phone possessed during a robbery conducted with the aid of another individual will contain evidence related to that offense.” DE 70, Opinion on Motion to Suppress, Page ID 382. While the inference may be reasonable, we need not decide today whether mere allegations of participation in criminal activity committed by more than one person automatically support a probable-cause determination for the search of cell phones found at the time of an arrest. Even if the nexus between Rolling’s cell phone and the robberies were insufficient to support a finding of probable cause, suppression of the seized cell phone evidence is not the correct remedy when officers relied on the warrant in good faith.
