The Sixth Circuit recently affirmed the denial of a motion to suppress in United States v. Westerlund, 2012 FED App. 0440N (6th Cir.). In the case, a 15-year-old boy was found drunk by his parents. He and his girlfriend claimed that Westerlund gave them alcohol. The boy's older brother (age 16) told police that he had also been given alcohol and marijuana by Westerlund before and that "a camera had been used at some of their parties and pictures had been taken but he thinks most of them were deleted."
On this information, law enforcement requested a search warrant to find "evidence relating to alcohol, marijuana, and devices used to photograph, record, and store images of minors without clothes or using alcohol or controlled substances." The district court found that no probable cause existed to search for child pornography, but a search for evidence of providing alcohol to minors was allowed including a search of digital cameras. Subsequently, photographs of unclothed minors and minors consuming alcohol were found. The Sixth Circuit affirmed the denial of the motion to suppress.
In a concurring opinion, Judge Cole agreed that probable cause existed to search for evidence of providing alcohol to minors, but suggested that it did not extend to searching cameras. Still, he concurred because of the "ever-widening Leon good-faith exception jurisprudence (an exception that will surely soon, if it has not already, swallow the rule)."
Cole argued that the only evidence suggesting that Westerlund had photographic evidence was a quote from the teenager saying that pictures had been taken but were deleted. The statement did not specify that Westerlund was the one who had taken them or that he was still in possession of them. Cole found this "disturbing" and suggested that it would allow a search warrant to be applied to nearly every person there because they likely had cameras on their cell phones.
[T]here would be a similarly "fair" probability that their devices would contain photos depicting criminal activity. To presume that there is a "fair probability" that photos of criminal activity would be found at Westerlund's home based on this statement alone requires an understanding of the word "fair" that I do not have.Judge Cole continued:
The district court latched onto the latter clause of W.J.'s statement, which referred to the photos being deleted, to note that photos may be resurrected from the trash folder on a computer, so their deletion should pose no bar to obtaining a search warrant. But such an argument puts the cart before the horse; it is not the photos' ability to be seized that is at issue, but whether the photos may be sought at all. Similarly, the majority opinion erroneously applies the "plain view" exception to justify the police officers' seizure of the photographs, while what is actually at issue is whether the police were able to look for any photos. As Westerlund makes clear, the photos that were immediately incriminating were not laying around in plain view; the government underscores this by noting that "[i]n the course of reviewing the pictures, other photographs were found that clearly and immediately appeared to be evidence of other crimes . . . ." Given that the officers had no authority to rifle through the photos in the first place, it cannot be reasonably stated that the incriminating photos were in plain view. To say otherwise would obviate any need for a search warrant to specifically list the items sought.While Judge Cole's argument certainly brings up an important issue in the case, it does also seem reasonable that even without the testimony about pictures being taken, an officer would be able to search a camera for the evidence. The fact that alcohol was in Westerlund's house does not alone provide evidence of providing alcohol to teenagers. Something more was needed, and pictures that might have been taken are certainly a great source. Regardless, Cole's acknowledgment of the ever-expanding good faith rule is well-received - at least by this author.
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