The officers did not ask for his consent to seize, and the consent form Mr. Lewis signed did not authorize a seizure.

 

U.S. v. Lewis

Nos. 22 – 5593/5800

Sixth Circuit Appellate Court

September 1, 2023

Child Exploitation Investigation Begins

In 2019, federal Homeland Security agents received a tip from a foreign law-enforcement agency that an internet-protocol address later connected to Mr. Edward Leonidas Lewis was “viewing child sexual exploitation online.”  The agents notified the Kentucky State Police, who opened an investigation.

Two years later, in February 2021, Detective Anthony Gatson of the Kentucky State Police and Homeland Security Special Agents Brian Minnick and Brandon Even traveled to Mr. Lewis’s home as part of their ongoing investigation.  Detective Gatson knocked on Mr. Lewis’s door, which Mr. Lewis answered.  Detective Gatson identified himself and the Homeland Security agents to Mr. Lewis, and “asked if [they] could speak to [Mr. Lewis] about a federal complaint of some alleged crimes over the internet from the federal government.”  Mr. Lewis invited Detective Gatson and the agents inside.

Consent was Granted … But Was it Specific?

Inside Mr. Lewis’s home, Detective Gatson explained that he had “been told there was child sexual exploitation activity at the house.”  Detective Gatson asked Mr. Lewis “if he would mind if someone came over and looked at . . . his devices.”  Mr. Lewis responded that he had no objection, id., and agreed to sign a consent form stating that he “consent[ed] to a complete search of the premises, property or vehicle located” at his residence “and more particularly described as Samsung Galaxy Note 9 [and] HP Pavilion Laptop.” Detective Gatson then called for a forensic examiner to come to Mr. Lewis’s home and “preview the items” described in the signed consent form.

Forensic Examiner Arrives at Mr. Lewis’ Home

Approximately twenty minutes later, Jason Rollins, a forensic examiner with the Kentucky State Police, arrived at Mr. Lewis’s home.  FE Rollins generated a preview of Mr. Lewis’s laptop, which revealed several file names indicative of child pornography, including “2yo_boy,” “Tara,” and “pedomom.”  FE Rollins also reviewed Mr. Lewis’s cell phone, where he found thumbnail images, which were determined on an unspecified later date to be taken from videos of Mr. Lewis’s cousin’s children bathing naked in a bathroom.  As FE Rollins was searching Mr. Lewis’s laptop and cell phone, Mr. Lewis reportedly stated that he knew it was illegal to save child pornography but that he did not know that it was illegal merely to look at it.  FE Rollins shared the results of his initial searches with Detective Gatson, but neither FE Rollins nor Detective Gatson opened any of the files or thumbnail images on Mr. Lewis’s laptop or cell phone.

Prosecutor Gives Advice and Mr. Lewis is Arrested and Mirandized

Detective Gatson called a Commonwealth prosecutor to ask for advice.  The prosecutor told Detective Gatson to arrest Mr. Lewis and obtain a search warrant for his residence.  Following that advice, Detective Gatson asked Mr. Lewis to step outside and read him his Miranda rights.  Mr. Lewis invoked his rights, but he did not say that he was revoking his consent to the search of his electronic devices or his home.  Another Kentucky State Police officer then arrived and drove Mr. Lewis to jail.

Search Warrant is Signed

After Mr. Lewis was arrested, Detective Gatson returned to his office while Special Agents Minnick and Even “sat on the front porch to secure the house.”  Detective Gatson prepared a search warrant for Mr. Lewis’s house and any electronic devices stored inside the home that could contain evidence of child pornography, including the laptop and cell phone that Detective Gatson and FE Rollins had reviewed at Mr. Lewis’s home.  Detective Gatson did not share the proposed search warrant or his affidavit in support of the warrant with a prosecutor, but instead took the documents directly to a Franklin County judge.  Detective Gatson did not provide the state judge with any additional information beyond what he included in the proposed search warrant and his affidavit.  The state judge signed the search warrant.

Search Warrant is Executed

Law-enforcement officers subsequently executed the search warrant, searching Mr. Lewis’s home and seizing his laptop, cell phone, and other electronic devices.  The officers took the devices to a state laboratory, where the devices were forensically searched.  The forensic search revealed evidence of child pornography on Mr. Lewis’s laptop, cell phone, and USB thumb drive.

Indicted

Mr. Lewis was indicted in October 2021 and charged with seven counts of producing, receiving, and possessing child pornography, in violation of 18 U.S.C. §§ 2251(a) and (e), 2252(a)(2), and 2251(a)(4)(B).  R. 1 (Indictment at 1–4).  Mr. Lewis pleaded not guilty and later moved under the Fourth Amendment to suppress the evidence obtained from his laptop, cell phone, and thumb drive as the fruits of an unlawful search and seizure.  He argued that the search warrant authorizing the search and seizure of his electronic devices was not supported by probable cause and, among other things, that the affidavit Detective Gatson submitted in support of the search warrant was a bare-bones affidavit.

Motion to Suppress is Denied

A magistrate judge held a hearing on Mr. Lewis’s motion to suppress and later issued a report and recommendation to the district court recommending that Mr. Lewis’s motion be denied.  United States v. Mr. Lewis, No. 3:21-CR-00021-GFVT-EBA, 2022 WL 1284061, at *1 (E.D. Ky. Jan. 11, 2022) (Mr. Lewis I), report and recommendation rejected, 591 F. Supp. 3d 177 (E.D. Ky. 2022) (Mr. Lewis II).  The magistrate judge declined to address Mr. Lewis’s challenges to the search warrant.  Mr. Lewis I, 2022 WL 1284061, at *7.  The magistrate judge instead found that Mr. Lewis had knowingly and voluntarily consented to the search of his electronic devices, that Mr. Lewis’s consent authorized not only the initial preview of his devices but also the subsequent seizure and forensic examination of the devices, and that Mr. Lewis had not withdrawn his consent at any time.  Id. at *4–6. Mr. Lewis objected to the report and recommendation.

District Court Judge Determines that the Devices were Unlawfully Seized but are Admissible Based on the Good Faith Doctrine

The district court declined to adopt the report and recommendation but agreed that Mr. Lewis’s motion should be denied on other grounds.  The district court disagreed with the magistrate judge’s analysis of the scope of Mr. Lewis’s consent, finding that Mr. Lewis had consented to the preview of his electronic devices but not to the subsequent seizure or search of those devices.  The district court further agreed with Mr. Lewis that the search warrant failed to establish probable cause to believe that his electronic devices contained evidence of a crime.  But the district court ultimately found that suppression was inappropriate because law-enforcement officers had relied on the search warrant in good faith.  The district court therefore denied Mr. Lewis’s motion to suppress.

Plea Bargain is Signed but Includes the Right to Appeal

Following the denial of his motion to suppress, Mr. Lewis signed a conditional plea agreement pursuant to which he pleaded guilty to one count of producing child pornography, in violation of 18 U.S.C. § 2251(a), but retained his right to appeal the district court’s suppression order and to withdraw his plea if he prevailed on that appeal.  The district court sentenced Mr. Lewis to 300 months’ imprisonment and a life term of supervised release.

Mr. Lewis filed this timely appeal.

Appeal

Mr. Lewis appeals the denial of his motion to suppress, challenging the district court’s finding that the good-faith exception to the exclusionary rule precludes suppression of evidence recovered from his electronic devices.  We review the district court’s conclusions of law de novo and its factual findings for clear error.  United States v. Master, 614 F.3d 236, 238 (6th Cir. 2010).

The Search Warrant

The district court found that the search warrant was not supported by probable cause but that the good-faith exception applied.  We accord “great deference” to the state magistrate’s probable-cause determination, but we give no particular weight to the district court’s review of that determination.  United States v. Lapsins, 570 F.3d 758, 763 (6th Cir. 2009) (quoting United States v. Terry, 522 F.3d 645, 647 (6th Cir. 2008)).  The district court’s finding that the “good faith exception applies is a legal conclusion that we review de novo.”  United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005)

Was Enough Probable Cause Listed on the Affadavit?

The Fourth Amendment provides that a search warrant may issue only “upon probable cause, supported by Oath or affirmation.”  U.S. Const. amend IV.  When determining whether a search warrant was supported by probable cause, we limit our review to the “four corners of the affidavit.”  United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010).  To establish probable cause for a search warrant, “an affidavit must contain facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search.”  United States v. Abboud, 438 F.3d 554, 572 (6th Cir. 2006) (quoting Frazier, 423 F.3d at 531).

Here, the state-court judge issued a search warrant based on Detective Gatson’s affidavit.  In the government’s words, Detective Gatson’s affidavit “detailed his considerable experience investigating child sexual exploitation crimes and included boilerplate language concerning such investigations.”  The affidavit then “set forth only the facts that” Detective Gatson “believe[d] [were] necessary to establish probable cause to believe that evidence, fruits and instrumentalities of violations of” Kentucky’s child sexual-exploitation laws were “present at” Mr. Lewis’s home.

Those facts were:

An HSI investigation identified Edward L Mr. Lewis . . . as a person of interest.  HSI SA Minnick requested assistance with interviewing Mr. Mr. Lewis.  Mr. Mr. Lewis was located at his residence at [address.]  Mr. Mr. Lewis gave consent to search his laptop and cell phone.  During [the] search it became apparent that Mr. Mr. Lewis had used his laptop to view images of child sexual exploitation.  The search based on consent was stopped and Mr. Mr. Lewis was arrested.

Based on the affiant’s knowledge, experience and training, Edward L Mr. Lewis has demonstrated a pattern of criminal activity related to child pornography, and there is a reasonable likelihood that the user treats child pornography as a valuable commodity to be retained and collected, a characteristic common to many people interested in child pornography.  It is, therefore, likely that evidence of the contraband remains in the user’s possession.

No!  There was Not Enough Probable Cause

The government does not dispute that Detective Gatson’s affidavit failed to establish probable cause.  “Detective Gatson provided the state judge only one fact in support of the existence of probable cause:  that a search of Mr. Mr. Lewis’s laptop and cell phone had occurred.”  Lewis II, 591 F. Supp. 3d at 186.  Absent additional information, such as a description of the evidence uncovered during that search, Detective Gatson’s affidavit merely stated his belief that Mr. Lewis had viewed child pornography.  That conclusory statement was too vague and insubstantial to establish probable cause to search Mr. Lewis’s electronic devices.  See United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004).  The search warrant that was issued based on Detective Gatson’s affidavit therefore violated the Fourth Amendment’s probable-cause requirement.

Good Faith Doctrine

Generally, evidence obtained in violation of the Fourth Amendment must be excluded.  See United States v. Rice, 478 F.3d 704, 711 (6th Cir. 2007).  In United States v. Leon, however, the Supreme Court recognized a good-faith exception to the exclusionary rule that applies when “reliable physical evidence [is] seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate.”  United States v. Leon, 468 U.S. 897, 913 (1984).  The good-faith exception, the Court explained, is premised on the conclusion “that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.”  Id. at 922.

“Suppression … Remains an Appropriate Remedy”

Leon declined to go so far as to hold “that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms.”  Rather, the Court recognized that exclusion’s benefits outweigh its costs—and “[S]uppression therefore remains an appropriate remedy”—when a law-enforcement officer lacks “reasonable grounds for believing that the warrant was properly issued.”  A law-enforcement officer lacks such reasonable grounds, and the good-faith exception is inapposite, in at least four situations:

  1. Where the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth;
  2. Where the issuing magistrate wholly abandoned his judicial role and failed to act in a neutral and detached fashion, serving merely as a rubber stamp for the police;
  3. Here the affidavit was nothing more than a “bare bones” affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and
  4. Where the officer’s reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient.

United States v. Rice, 478 F.3d 704, 712 (6th Cir. 2007) (quoting United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006)).

Search Warrant Affidavit was Bare Bones

In this case, the issue is whether law-enforcement officers reasonably relied on the search warrant.  Mr. Lewis argues that the application of the good-faith exception is inapposite because Detective Gatson’s affidavit was a “bare bones”.  “Suppression . . . remains an appropriate remedy” when “a warrant [is] based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”  United States v. Leon, United States v. Leon, 468 U.S. 897, 923 (1984).

Well Short of Probable Cause

We agree with Mr. Lewis that the law-enforcement officers did not reasonably rely on Detective Gatson’s affidavit because the affidavit was a bare-bones affidavit.  Although Detective Gatson’s affidavit fell well short of establishing probable cause, “[a]n affidavit cannot be labeled ‘bare bones’ simply because it lacks the requisite facts and inferences to sustain the magistrate’s probable-cause finding.”  United States v. White, 874 F.3d 490, 497 (6th Cir. 2017).  Rather, the affidavit “must be so lacking in indicia of probable cause that, despite a judicial officer having issued a warrant, no reasonable officer would rely on it.”  Considering the complete lack of factual information included in Detective Gatson’s affidavit, we hold that no reasonable officer would rely on the affidavit to establish probable cause to believe that Mr. Lewis’s electronic devices would contain evidence of a child sexual-exploitation offense or any other crime.

A Judge Would have No Factual Basis Upon Which to Conclude that Mr. Lewis May Have Committed Any Crime

As discussed above, the non-boilerplate portion of Detective Gatson’s affidavit begins by stating that “[A]n HSI investigation identified Edward L Mr. Lewis . . . as a person of interest.”  The affidavit does not explain what “HSI” stands for, why HSI considered Mr. Lewis to be a person of interest, or the significance of HSI’s person-of-interest designation.  Reading that initial portion of Detective Gatson’s affidavit, a judge would have no factual basis upon which to conclude that Mr. Lewis may have committed any crime, let alone the specific crime of child sexual exploitation as defined by Kentucky law.

Next, the affidavit states that Mr. Lewis “consent[ed] to [a] search [of] his laptop and cell phone” and that “[D]uring [the] search it became apparent that Mr. Mr. Lewis had used his laptop to view images of child sexual exploitation.”  This section clearly expresses Detective Gatson’s belief that Mr. Lewis had committed a crime, but it does not provide a factual basis upon which a magistrate could independently reach that conclusion.  Indeed, Detective Gatson’s conclusion that “it became apparent that” Mr. Lewis had “view[ed] images of child sexual exploitation” was “a mere conclusory statement that [gave] the magistrate virtually no basis at all for making a judgment regarding probable cause.”  Illinois v. Gates, 462 U.S. 213, 239 (1983).  A magistrate could conclude that there was probable cause to search Mr. Lewis’s electronic devices only by substituting Detective Gatson’s evaluation of the evidence for the magistrate’s own evaluation.

Affidavit Included Conclusory Statements Without Supporting Facts

Lastly, the affidavit states that “[B]ased on [Detective Gatson’s] knowledge, experience and training, Edward L Mr. Lewis has demonstrated a pattern of criminal activity related to child pornography, and there is a reasonable likelihood that the user treats child pornography as a valuable commodity to be retained and collected, a characteristic common to many people interested in child pornography.”  This final statement likewise fails to set forth any factual information.  It is tantamount to a statement that “probable cause existed”—the very definition of a conclusory statement.  United States v. Williams, 224 F.3d 530, 533 (6th Cir. 2000),

Probable Cause Cannot be Singularly Based on a Detectives Say-So

Taking a step back and considering Detective Gatson’s affidavit under the totality of the circumstances, “the combined boilerplate language and minimal . . . information provide few, if any, particularized facts of an incriminating nature and little more than conclusory statements of affiant’s belief that probable cause existed regarding criminal activity.”  Weaver, 99 F.3d at 1379.  By omitting the essential facts of his investigation and communicating only his bottom-line conclusion, Detective Gatson asked the magistrate to find probable cause based solely on his say-so.  “No reasonable officer could have believed” under those circumstances “that the affidavit was not so lacking in indicia of probable cause as to be reliable.”  United States v. Laughton, 409 F.3d 744, 751.

The Affidavit Does Not Identify a Sufficient Factual Basis for Believing that Mr. Lewis’s Devices Contained Evidence of Child Pornography

The flaw in Detective Gatson’s affidavit is not that it does not explicitly draw connections between information included in the affidavit or explain the inferences needed to support probable cause.  Rather, the inescapable flaw is that the affidavit does not identify a sufficient factual basis for believing that Mr. Lewis’s devices contained evidence of child pornography.

Not Enough Information to Invoke the Good Faith Doctrine

Under these circumstances, application of the good-faith exception would be inappropriate.  The purpose of the exclusionary rule “is to deter future Fourth Amendment violations.”  Davis v. United States, 564 U United States v. Leon, 468 U.S. 897, 913 (1984).S. 229, 236–37 (2011).  The good-faith exception promotes that purpose by precluding suppression where the remedy would “[p]enaliz[e] the officer for the magistrate’s error, rather than his own.”  United States v. Leon, 468 U.S. 897, 921 (1984).  Where “the officer’s reliance on the magistrate’s probable-cause determination” is “entirely unreasonable.” however, suppression promotes deterrence and the good-faith exception is inapposite  Id. at 922–23. That is the case here.

Court Criticizes Detective

Neither the laws nor the facts are complex.  A law-enforcement officer with as much training and experience as Detective Gatson—and indeed any reasonable law-enforcement officer—should know that a warrant affidavit must provide enough non-conclusory information to allow a neutral magistrate to determine whether there is probable cause.  And here, providing the magistrate with those facts would have been straightforward:  officers found incriminating evidence on Mr. Lewis’s computer and Mr. Lewis made incriminating statements during their conversation.  Yet Detective Gatson chose not to provide that information in his affidavit.  As a result, law-enforcement officers searched Mr. Lewis’s electronic devices based on an affidavit that any reasonable officer would have known lacked sufficient information to establish probable cause.  Rejecting the application of the good-faith exception is necessary to demonstrate that Detective Gatson and the other officers had a duty to ensure that the affidavit was free of obvious constitutional defects and to underscore the costs of not discharging that duty.

Court Concludes Good Faith Doctrine is Inapplicable

For all these reasons, we conclude that the good-faith exception is inapplicable here.  A search-warrant affidavit that states only the affiant’s conclusory belief that a suspect committed a crime is a bare-bones affidavit that cannot establish probable cause to search and that precludes application of the good-faith exception to the exclusionary rule.  Because the search warrant here was supported by only Detective Gatson’s bare-bones affidavit, the warrant did not authorize law-enforcement officers to search or seize Mr. Lewis’s electronic devices and the fruits of those searches must be excluded unless an exception to the Fourth Amendment’s warrant requirement applies.

Exceptions to the Warrant Requirement

Warrantless searches and seizures “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”  Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).  Thus, the evidence recovered from Mr. Lewis’s electronic devices must be suppressed unless an exception to the warrant requirement permitted the search and seizure of the devices.  The government invokes two exceptions:  consent and the plain-view doctrine.

Did Mr. Lewis Consent to Search His Devices?

The government first contends that Mr. Lewis consented to the search and seizure of his electronic devices.  Consent is an exception to the Fourth Amendment’s warrant requirement.  Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).  Mr. Lewis concedes that he consented to an initial search of his laptop and cell phone and that Detective Gatson and forensic examiner FE Rollins were entitled to perform that search without first securing a warrant.  Mr. Lewis argues, however, that he did not consent to the seizure or subsequent forensic examination of his electronic devices.

The district court found that Mr. Lewis consented to the initial search of his laptop and cell phone performed by FE Rollins at Mr. Lewis’s home, but that the law-enforcement officers exceeded the scope of Mr. Lewis’s consent when they seized his electronic devices and later forensically examined them.

Consent was Granted … But to What Exactly?

The parties agree that Mr. Lewis consented to the initial search of his laptop and cell phone at his home.  Detective Gatson specifically told Mr. Lewis that he was looking for evidence of child pornography and asked Mr. Lewis “if he would mind if someone came over and looked at . . . his devices” for that evidence.  Mr. Lewis did not object to Detective Gatson’s request, and he then signed a consent-to-search form that authorized “a complete search of the premises, property or vehicle located at [his address] and more particularly described as Samsung Galaxy Note 9 [and] HP Pavilion Laptop.”  Mr. Lewis was then present as FE Rollins searched and generated the preview of his laptop and looked through his phone.  Mr. Lewis never attempted to withdraw his consent while FE Rollins performed these searches or generated the preview of his laptop.

What Would a Reasonable Person Have Understood?

The government argues that Mr. Lewis also consented to the seizure and forensic examination of his electronic devices.  The district court rejected the government’s argument, finding that nothing in Mr. Lewis’s exchange with Detective Gatson or the other law-enforcement officers would suggest to a reasonable person that Mr. Lewis had consented to nothing more than the initial search of his devices.  The district court’s findings are consistent with Mr. Lewis’s exchange with the law-enforcement officers and those officers’ actions, and therefore are not clearly erroneous.

Evidently a Consent to Search Should Have Included a Two-Layer Consent

At the suppression hearing, Detective Gatson, Special Agent Minnick, and Special Agent Even testified that Detective Gatson asked Mr. Lewis something to the effect of whether he “mind[ed] if [they] look[ed]” at his devices.  (Detective Gatson recounting that he asked Mr. Lewis “if he would mind . . . if we could look at his devices”); (Special Agent Minnick testifying that Detective Gatson asked Mr. Lewis “for consent to search some media”).  None of the law-enforcement officers testified that Mr. Lewis was asked for his consent to seize his devices or to a perform a second, more invasive search of the devices at a state forensic laboratory, or that he voluntarily consented to those actions.

Court Determines that a ‘Complete’ Search Actually Meant an Incomplete Search

Although Mr. Lewis signed a consent form that authorized “a complete search” (but not a seizure) of his “premises, property or vehicle.”  Detective Gatson said that he understood Mr. Lewis to be “giving consent for a forensic examiner to come out and preview devices” and not “to come out and look around” more broadly.  Detective Gatson’s stated understanding of the limited scope of Mr. Lewis’s consent is consistent with the actions that he and other officers took before, during, and after the initial search of Mr. Lewis’s laptop and cell phone.  As just noted above, Detective Gatson asked Mr. Lewis for his consent to have FE Rollins come to Mr. Lewis’s home and look through his laptop and cell phone, not to engage in an exhaustive examination of all of Mr. Lewis’s devices or to conduct a forensic examination of them.  After FE Rollins searched Mr. Lewis’s laptop and cell phone, Detective Gatson told Mr. Lewis that he was placing him under arrest, that the consent search was complete, and that he would seek a search warrant for Mr. Lewis’s devices.  Mr. Lewis was then transported to jail, and Detective Gatson left Mr. Lewis’s home while the agents stood guard outside of it.

Court Goes to Great Lengths to Say “Complete’ Search Has Limits

The district court did not clearly err in finding that Detective Gatson and the other law-enforcement officers exceeded the scope of Mr. Lewis’s consent when they seized his electronic devices and forensically examined them.  As the district court observed, searches and seizures implicate different Fourth Amendment interests.  Nothing in Mr. Lewis’s exchange with Detective Gatson or in the law-enforcement officers’ actions would suggest to a reasonable person that Mr. Lewis had consented to the seizure of all the electronic devices in his home.  The officers did not ask for his consent to seize, and the consent form Mr. Lewis signed did not authorize a seizure.  Further, all agree that Mr. Lewis allowed FE Rollins to search his devices while FE Rollins, Mr. Lewis, and the law-enforcement officers were present in Mr. Lewis’s home.  But the events recounted above demonstrate that Detective Gatson and the other officers reached the limit of Mr. Lewis’s consent once they terminated the consent search, arrested Mr. Lewis, and left his home to obtain a search warrant.  Thus, Mr. Lewis’s consent did not authorize the seizure and forensic examination of his devices.

Plain View

The government invokes one other exception to the Fourth Amendment’s warrant requirement:  the plain-view doctrine.  “Under [the plain-view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.”  Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).  The government argues that Detective Gatson and FE Rollins were entitled to seize Mr. Lewis’s electronic devices and later forensically search them after they saw incriminating file names on the laptop during the initial consent search.

Plain View Doctrine Appeal was Tardy

The government’s plain-view argument falls flat.  To start, the argument is forfeited.  The government did not invoke the plain-view doctrine in the district court proceedings below.

Holding

Accordingly, we REVERSE the district court’s order denying Mr. Lewis’s motion to suppress, VACATE Mr. Lewis’s conviction, and REMAND for further proceedings.

Information for this article was obtained from U.S. v. Lewis, Nos. 22 – 5593/5800.

U.S. v. Lewis, Nos. 22 – 5593/5800 was issued by the Sixth Circuit Appellate Court and is binding in Kentucky, Michigan, Ohio and Tennessee.

Lessons Learned:

  1. Consent to Search Excludes Consent to Seize?? This is a frustrating case because as the court explained “Detective Gatson asked Mr. Lewis “if he would mind if someone came over and looked at . . . his devices.””. Thereafter Mr. Lewis signed a consent to search form and then the court opined “The officers did not ask for his consent to seize, and the consent form Mr. Lewis signed did not authorize a seizure.”. So the officers obtained a valid consent to search form. To my knowledge there typically are no forms titled “Consent to Seize” … and logically if an officer is going to ‘search’ a container then law enforcement must seize the container.  In this case the container was electronic but the Sixth Circuit went to great lengths to state that a consent to search excludes a consent to seize. Law enforcement agencies who regularly request consent to search electronic devices should consider creating ‘Consent to Seize’ forms to comport with U.S. v. Lewis, Nos. 22 – 5593/5800 (2023).
  2. Boilerplate Affidavits – Most detectives cut and paste information from one affidavit to another and courts knows that this is a common practice. However, law enforcement must be cautious about making conclusive statements in the affidavit without a factual and legal foundation leading to probable cause.  In this case the detective specifically stated ““it became apparent that” Mr. Lewis had “view[ed] images of child sexual exploitation” was “a mere conclusory statement that [gave] the magistrate virtually no basis at all for making a judgment regarding probable cause.””. The words ‘it became apparent’ was one of the conclusive statements that was without a factual and legal foundation.  Consequently, this was violative of the Good Faith Doctrine Bare Bones Doctrine as described in United States v. Leon, 468 U.S. 897, 913 (1984) that stated in pertinent part “Where the affidavit was nothing more than a ‘bare bones’ affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause.”.
  3. What Could Have Been Done Better? Law enforcement is THE hardest job in America and critiquing officers on how they do there job is much easier than actually doing the job without the benefit of knowing how things turned out.  However, when a detective completes an affidavit, it is always best to have a supervisor, or another teammate review the document prior to submitting it to a judge for authorization.  In this case, perhaps another set of eyes could have caught a scrivener’s error, when the detective wrote “[T]he non-boilerplate portion of Detective Gatson’s affidavit begins by stating that “[A]n HSI investigation identified Edward L Mr. Lewis . . . as a person of interest.”  The affidavit does not explain what “HSI” stands for, why HSI considered Mr. Lewis to be a person of interest, or the significance of HSI’s person-of-interest designation.”.

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