You have 0 items in your cart
It’s been said that a prosecutor could convince a grand jury to indict a ham sandwich, and this case proves that a cop could similarly convince a judge to grant a search warrant without any probable cause. Thankfully, a federal judge put a stop to it, although a bit too late.
The Cops Came Knocking
The case involved some disturbing facts about child exploitation, mainly allegations of the production and distribution of child pornography. The charges stemmed from a tip to local law enforcement in Kentucky, who went to the house of Ed Lewis and asked to “take a look” at his computer and cell phone. While the cops didn’t have a search warrant, Mr. Lewis’s written consent to a “complete search of the premises” bypassed that – for now.
The Charges and Conviction
The evidence found on the devices was used against Mr. Lewis in federal court, and he pled guilty to one count of producing child pornography under 18 U.S.C. § 2251, reserving his right to appeal the denial of his motion to suppress the evidence. He was sentenced to 25 years in federal prison without parole and appealed.
On appeal, the U.S. Court of Appeals for the Sixth Circuit acknowledged that the district court did not find probable cause to support the search warrant that was obtained from the state judge. However, the district court invoked the “good-faith exception” to the rule that evidence obtained in violation of the Fourth Amendment must be tossed out.
The Fourth Amendment Forbids Warrantless Searches
The Fourth Amendment forbids any search or seizure by the government without a search warrant supported by “probable cause” for the search, usually by way of an affidavit by law enforcement detailing criminal activity. To show probable cause, courts have held that 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. This is not a high bar, but more than speculation or conclusory statements must be offered.
The good-faith exception, though, allows evidence obtained in violation of the Fourth Amendment to be admitted if the officers “reasonably relied” on the warrant, and excluding the evidence would result in a “substantial cost” to society. The goal of excluding illegally obtained evidence, the courts say, is to deter future bad conduct by law enforcement; it is not meant to restore the person harmed by that bad conduct.
The Warrant was Defective And No Exceptions Applied
Everyone in this case admitted that there was no probable cause in the officer’s affidavit to support the search warrant. At best, the affidavit said Mr. Lewis was “a person of interest” and that it “became apparent that Mr. Lewis had used his computer to view images of child sexual exploitation.” But the affidavit lacked the particularity required by the Fourth Amendment, namely the facts needed to establish a crime had been committed. This wasn’t enough, and the court called it a “bare-bones” affidavit that could not provide probable cause.
But the government argued that an exception should apply because Mr. Lewis had consented to the search of his devices, which allowed the officers to seize them. Not true, the court said. The officers “exceeded the scope” of that consent by taking his devices (after he was already arrested and taken to jail). He never consented to them taking the devices, only taking a look at them. “Nothing in Lewis’s exchange with Detective Gatson or the other law-enforcement officers would suggest to a reasonable person that Lewis had consented to anything more than the initial search of his devices,” the court explained.
The Outcome
The Sixth Circuit therefore reversed the denial of Mr. Lewis’s motion to suppress the evidence and remanded to the district court. Without evidence of the alleged crime, it is going to be rather difficult for the government to obtain a conviction in this case. But I have seen the government do creative things to charge someone in sex offense cases and obtain (i.e., force) a conviction. This is one to watch.
United States v. Lewis, No. 22-5593/5800, 2023 U.S. App. LEXIS 23316 (6th Cir. Sep. 1, 2023).
