United States v. Griffith

• Citation: 867 F.3d 1265
• Decision Date: 18 August 2017
• Docket Number: No. 13-3061,13-3061
• Parties: UNITED STATES of America, Appellee v. Ezra GRIFFITH, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

867 F.3d 1265

UNITED STATES of America, Appellee

v.Ezra GRIFFITH, Appellant

No. 13-3061

United States Court of Appeals, District of Columbia Circuit.

Argued December 13, 2016

Decided August 18, 2017

William H. Burgess argued the cause for appellant. With him on the briefs were Darren S. Gardner, Matthew P. Downer, A.J. Kramer, Federal Public Defender, and Rosanna M. Taormina, Assistant Federal Public Defender. Tony Axam Jr., Assistant Federal Public Defender, entered an appearance.

Lauren R. Bates, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Elizabeth Trosman and Chrisellen R. Kolb, Assistant U.S. Attorneys.

Before: Brown, Srinivasan and Pillard, Circuit Judges.

Dissenting opinion filed by Circuit Judge Brown.

Srinivasan, Circuit Judge:

Most of us nowadays carry a cell phone. And our phones frequently contain information chronicling our daily lives—where we go, whom we see, what we say to our friends, and the like. When a person is suspected of a crime, his phone thus can serve as a fruitful source of evidence, especially if he committed the offense in concert with others with whom he might communicate about it. Does this mean that, whenever officers have reason to suspect a person of involvement in a crime, they have probable cause to search his home for cell phones because he might own one and it might contain relevant evidence? That, in essence, is the central issue raised by this case.

Appellant Ezra Griffith was charged with unlawful possession of a firearm by a convicted felon. He moved to suppress the firearm, arguing that police discovered it while executing an invalid warrant to search his home. The district court denied the motion, and a jury convicted Griffith at trial. Griffith now challenges the denial of his motion to suppress.

The warrant authorized officers to search for and seize all cell phones and other electronic devices in Griffith's residence. The supporting affidavit, however, offered almost no reason to suspect that Griffith in fact owned a cell phone, or that any phone or other device containing incriminating information would be found in his apartment. In our view, the fact that most people now carry a cell phone was not enough to justify an intrusive search of a place lying at the center of the Fourth Amendment's protections—a home—for any phone Griffith might own.

We therefore agree with Griffith that the warrant to search his residence was unsupported by probable cause. We also reject the government's arguments that, even if the warrant was invalid, the firearm still need not have been excluded from the evidence against him. Consequently, we vacate Griffith's conviction.

I.

In January 2013, police obtained a warrant to search Griffith's residence in connection with their investigation of a homicide committed more than one year earlier. Investigators concluded that the shooting related to a conflict between rival gangs. The officers knew Griffith was a member of one of the gangs and suspected he drove the getaway car, which surveillance footagehad captured circling the scene. Two months after the shooting, police found a vehicle matching the surveillance footage and registered to Griffith's mother. Eight months later, a detective met with Griffith's mother, who confirmed that Griffith had been the vehicle's principal user.

During much of the year-long investigation, Griffith had been incarcerated on unrelated charges. Detectives obtained recordings of Griffith's jailhouse phone calls made on the day they interviewed his mother. Griffith initiated four calls that day: two to his home number (where his mother lived) and two to his grandmother's home phone. In one of the calls, Griffith spoke to Dwayne Hilton, another suspect in the shooting, and said, "man you know it's about that." A. 33. The two briefly discussed a "whip" (slang for car), before Hilton changed the subject. Id. In another call, Griffith's brother reported that fellow gang member Carl Oliphant needed to speak with Griffith. Oliphant did not have a cell phone, so Griffith's brother walked with a phone to Oliphant's house. Griffith then briefly explained to Oliphant that detectives had been investigating the car.

In September 2012, Griffith was released from his confinement on the unrelated charges after serving approximately 10 months. Detectives learned that Griffith moved into an apartment owned by his girlfriend, Sheree Lewis. In January 2013, police sought a warrant to search Lewis's apartment.

The bulk of the ten-page affidavit supporting the search warrant explained Griffith's suspected involvement in the homicide committed more than one year beforehand. The affiant, a 22-year veteran of the police department, recounted the evidence and expressed his belief that Griffith had been the getaway driver. The affidavit also described the evidence that Griffith now lived with Lewis in her apartment.

Two sentences in the affidavit then set out the basis for believing incriminating evidence would be discovered in the apartment. Those sentences read as follows:

Based upon your affiant's professional training and experience and your affiant's work with other veteran police officers and detectives, I know that gang/crew members involved in criminal activity maintain regular contact with each other, even when they are arrested or incarcerated, and that they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices and the Internet, to include Facebook, Twitter and E-mail accounts.

Based upon the aforementioned facts and circumstances, and your affiant's experience and training, there is probable cause to believe that secreted inside of [Lewis's apartment] is evidence relating to the homicide discussed above.

A. 35-36. The affidavit then concluded by enumerating the items the officers sought to seize from the apartment, principally any cell phones and electronic devices found there.

On January 4, 2013, a magistrate judge granted the application for a search warrant. As requested in the affidavit, the warrant authorized a search for, and seizure of, the following items:

all electronic devices to include, but not limited to cellular telephone(s), computer(s), electronic tablet(s), devices capable of storing digital images (to include, but not limited to, PDAs, CDs, DVD's [and] jump/zip drives), evidence of ownership of such devices, subscriber information relating to the electronic devices, any information describing, referencing, or mentioning in any[ ]way the above-described offense, any handwritten form (such as writing to include but not limited to notes, papers, or mail matter), photographs, newspaper articles relating to the shooting death [under investigation], and any indicia of occupancy of the premises described above.

A. 26.

Three days later, on January 7, a team of officers executed the search. The officers arrived at 7:10 AM and surrounded the building. When they knocked on the door and announced they had a search warrant, an officer assigned to contain the premises observed an arm throw an object out of the apartment's window. The officer determined that the object was a firearm and then glanced at the window. He saw Griffith looking back at him.

About 30 seconds after the officers knocked on the door and announced they had a search warrant, Lewis opened the door. Officers found three people inside the apartment: Lewis, Griffith, and a six-year-old child. Officers knew one of those three people had tossed the gun out of the window. Officers seized the gun, and also seized a number of cell phones recovered in the course of their search of the apartment.

Based on the containment officer's identification of him, the government charged Griffith with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Griffith moved to suppress all tangible evidence seized under the search warrant, including the gun. He challenged the warrant as facially invalid, arguing there was no evidence he had ever owned a cell phone or other electronic device, or that any such device would be found in the apartment. The government argued that the warrant was supported by probable cause, or that, at a minimum, the good-faith exception to the exclusionary rule applied. See United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The government further contended that Griffith in any event lacked standing to seek suppression of the gun because he had voluntarily abandoned it when he tossed it out of the window.

The district court denied Griffith's suppression motion. The court rejected the government's abandonment argument because it thought the merits of the government's position on that issue would rise or fall with the legality of the government's "entry into the apartment that prompted the tossing of the gun." A. 110. The court also declined to decide whether the warrant was supported by probable cause, holding that, regardless, the good-faith exception to the exclusionary rule applied.

At trial, a jury convicted Griffith of unlawful possession of a firearm by a felon. He appeals his conviction, challenging the district court's denial of his suppression motion.

II.

We first consider the validity of the warrant authorizing the search of Lewis's apartment. Because Griffith lived with Lewis at the time, he had a legitimate expectation of privacy in her home for purposes of raising a Fourth Amendment challenge. See Minnesota v. Olson , 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).

The government's argument in support of probable cause to search the apartment rests on the prospect of finding one specific item there: a cell phone owned by Griffith. Yet the affidavit supporting the warrant application provided virtually no reason to suspect that Griffith in fact owned a cell phone, let alone that any phone belonging to him and containing incriminating information would be found in the residence. At the...