United States v. Ezra Griffith

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 13, 2016 Decided August 18, 2017

No. 13-3061

UNITED STATES OF AMERICA,

APPELLEE

v.

EZRA GRIFFITH,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cr-00013-1)

William H. Burgess argued the cause for appellant. With

him on the briefs were Darren S. Gardner, 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.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

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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

3

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 footage had 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.

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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

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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

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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 (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

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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 (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 same time, the warrant authorized the wholesale seizure of

all electronic devices discovered in the apartment, including

items owned by third parties. In those circumstances, we

conclude that the warrant was unsupported by probable cause

and unduly broad in its reach.

A.

The Fourth Amendment prescribes that “no Warrants shall

issue, but upon probable cause.” U.S. Const. amend. IV. When

assessing whether a search warrant is supported by probable

cause, we ask whether the issuing judge had a “substantial

8

basis” for concluding that “a search would uncover evidence of

wrongdoing.” Illinois v. Gates, 462 U.S. 213, 236 (1983)

(quoting Jones v. United States, 362 U.S. 257, 271 (1960)).

Although we pay “great deference” to the judge’s initial

determination of probable cause, a warrant application cannot

rely merely on “conclusory statement[s].” Id. at 236, 239

(citing Nathanson v. United States, 290 U.S. 41 (1933)).

Here, the lion’s share of the affidavit supporting the

warrant application is devoted to establishing Griffith’s

suspected involvement as the getaway driver in a homicide.

That information might have established probable cause to

arrest Griffith for his participation in the crime. The warrant

application, though, was for a search warrant, not an arrest

warrant. And to obtain a warrant to search for and seize a

suspect’s possessions or property, the government must do

more than show probable cause to arrest him. The government

failed to make the requisite showing in this case.

1. The Supreme Court has long distinguished between

arrest warrants and search warrants. See Steagald v. United

States, 451 U.S. 204, 212-13 (1981). An arrest warrant rests

on probable cause to believe that the suspect committed an

offense; it thus primarily serves to protect an individual’s

liberty interest against an unreasonable seizure of his person.

Id. at 213. A search warrant, by contrast, is grounded in

“probable cause to believe that the legitimate object of a search

is located in a particular place.” Id. Rather than protect an

individual’s person, a search warrant “safeguards an

individual’s interest in the privacy of his home and possessions

against the unjustified intrusion of the police.” Id.

In light of the distinctness of the inquiries, probable cause

to arrest a person will not itself justify a warrant to search his

property. Regardless of whether an individual is validly

9

suspected of committing a crime, an application for a search

warrant concerning his property or possessions must

demonstrate cause to believe that “evidence is likely to be

found at the place to be searched.” Groh v. Ramirez, 540 U.S.

551, 568 (2004). Moreover, “[t]here must, of course, be a

nexus . . . between the item to be seized and criminal behavior.”

Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307

(1967).

Those concerns about the distinct requirements for a

search warrant are particularly salient in this case, for two

reasons. First, the warrant application sought authorization to

search a home, which stands at “the very core” of the Fourth

Amendment’s protections. Silverman v. United States, 365

U.S. 505, 511 (1961); see Groh, 540 U.S. at 559. Second, the

scope of a permissible search depends on the specific spaces in

which the object of the search might be found. See Maryland

v. Garrison, 480 U.S. 79, 84-85 (1987). Authorization to

search for an item fitting in the palm of a hand, like a cell

phone, thus can entail an intrusive inspection of all corners of

a home. (And here, as explained below, officers sought and

obtained authorization to continue their search until they found

every cell phone and electronic device in the apartment.) This

case, in short, involves the prospect of an especially invasive

search of an especially protected place.

Although the warrant application sought authorization to

search for items other than a cell phone, those additional items

have no bearing on our assessment of probable cause to search

the home. The application, for instance, encompassed the

seizure of any documents, newspaper articles, photographs, or

other information relating to the crime. The affiant, however,

suggested no reason whatsoever to expect the presence of

incriminating documents, newspaper articles, or photographs

in the apartment. The affidavit in fact contained no mention of

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those items apart from a final sentence summarily seeking

authorization to seize any of them officers might happen to

discover. The government thus understandably makes no

argument that there was probable cause to search the apartment

due to a belief that incriminating documents, articles, or

photographs would be found there.

The application also referenced electronic devices apart

from cell phones, including computers, tablets, and personal

digital assistants. Again, though, the affidavit provided no

reason to suppose that Griffith possessed any of those devices

or that any would be found in the apartment. And although we

give a “commonsense” rather than “hypertechnical” reading to

a warrant application, Gates, 462 U.S. at 236 (internal

quotation marks omitted), there is no commonsense reason

simply to presume that individuals own a computer or tablet.

Those sorts of devices do not approach cellphones in their

ubiquity: whereas the Supreme Court, around the time of the

warrant application in this case, observed that “more than 90%

of American adults . . . own a cell phone,” Riley v. California,

134 S. Ct. 2473, 2490 (2014), the same organization cited by

the Court for that measure estimated the contemporaneous

incidence of tablet ownership among adults at roughly 30%

(2013), and of computer ownership at roughly 75% (2015), see

Technology Device Ownership: 2015, Pew Research Center

(Oct. 29, 2015), http://www.pewinternet.org/2015/10/29/

technology-device-ownership-2015.

2. That brings us back to the warrant application’s reliance

on cell phones—in particular, on the possibility that Griffith

owned a cell phone, and that his phone would be found in the

home and would contain evidence of his suspected offense.

With regard to his ownership of a cell phone, it is true that, as

the Supreme Court recently said, cell phones are now “such a

pervasive and insistent part of daily life that the proverbial

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visitor from Mars might conclude they were an important

feature of human anatomy.” Riley, 134 S. Ct. at 2484. We do

not doubt that most people today own a cell phone.

But the affidavit in this case conveyed no reason to think

that Griffith, in particular, owned a cell phone. There was no

observation of Griffith’s using a cell phone, no information

about anyone having received a cell phone call or text message

from him, no record of officers recovering any cell phone in his

possession at the time of his previous arrest (and confinement)

on unrelated charges, and no indication otherwise of his

ownership of a cell phone at any time. To the contrary, the

circumstances suggested Griffith might have been less likely

than others to own a phone around the time of the search: he

had recently completed a ten-month period of confinement,

during which he of course had no ongoing access to a cell

phone; and at least one person in his circle—his potential co-

conspirator, Carl Oliphant—was known not to have a cell

phone.

We are aware of no case, and the government identifies

none, in which police obtained authorization to search a

suspect’s home for a cell phone without any particularized

information that he owned one. In the typical case, officers will

have already come into possession of a suspect’s phone after

seizing it on his person incident to his arrest. See, e.g., id. at

2480-82; United States v. Bass, 785 F.3d 1043, 1049 (6th Cir.

2015). Officers also might receive reliable indication of a

suspect’s possession of a cell phone. See, e.g., United States v.

Mathis, 767 F.3d 1264, 1269 (11th Cir. 2014); United States v.

Grupee, 682 F.3d 143, 145-46 (1st Cir. 2012). There was no

such information here about Griffith.

3. To justify a search of the apartment to seize any cell

phone owned by Griffith, moreover, police needed reason to

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think not only that he possessed a phone, but also that the

device would be located in the home and would contain

incriminating evidence about his suspected offense. With

respect to the first of those additional considerations, the

affidavit set out no reason to believe the phone was “likely to

be found at the place to be searched.” See Groh, 540 U.S. at

568. People ordinarily carry their cell phones with them

wherever they go. A cell phone, after all, is nearly a “feature

of human anatomy.” Riley, 134 S. Ct. at 2484. “According to

one poll” cited by the Supreme Court, “nearly three-quarters of

smart phone users report being within five feet of their phones

most of the time,” leading the Court to describe persons “who

own a cell phone” as “keep[ing] on their person a digital

record of nearly every aspect of their lives.” Id. at 2490

(emphasis added).

In that light, the assumption that most people own a cell

phone would not automatically justify an open-ended warrant

to search a home anytime officers seek a person’s phone.

Instead, such a search would rest on a second assumption: that

the person (and his cell phone) would be home. When, as here,

the police execute a warrant early in the morning, such an

assumption might be fair, but it entails adding another layer of

inference onto an already questionable probable cause calculus.

And the warrant in any event gave officers authority to search

Griffith’s apartment for any cell phones without regard to his

presence on the scene. Indeed, the police, not knowing whether

Griffith owned a cell phone, sought and obtained authority to

maintain their search until they found all cell phones in Lewis’s

apartment, so that they could later assess which (if any)

belonged to Griffith.

The upshot is that the information in the warrant

application might well have supported an arrest warrant for

Griffith—which in turn presumably would have occasioned a

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search of him incident to his arrest, and an ensuing seizure of

any cell phone he owned in the most likely place to find it (on

his person). See id. at 2486. But the government instead

elected to seek license to conduct a full-scale search of his

entire home based on the possibility that he owned a phone and

that a phone found there might be his.

The government urges us to assume that a home might

contain incriminating evidence based on decisions allowing a

search of a residence for drugs. That context is markedly

different. Our decisions have considered probable cause to

suspect a person of involvement in drug trafficking as

supporting probable cause to believe drugs will be found in his

residence. See United States v. Washington, 775 F.3d 405, 409

(D.C. Cir. 2014); United States v. Cardoza, 713 F.3d 656, 661

(D.C. Cir. 2013). But we have done so precisely because drug

traffickers “rarely keep on their person or immediately about

them their entire supply of drugs.” Washington, 775 F.3d at

409. And “[f]or the vast majority of drug dealers, the most

convenient location to secure items is the home.” Cardoza, 713

F.3d at 661 (quoting United States v. Spencer, 530 F.3d 1003,

1007 (D.C. Cir. 2008)). The same considerations do not apply

to cell phones. Although a trafficker ordinarily would keep the

bulk of his drugs away from his person and in the security of

his home, a person typically would keep her cell phone with

her.

4. Finally, even if we assume Griffith owned a phone and

that his phone would be found in the apartment, what about the

likelihood that the phone would contain incriminating

evidence? Because a cell phone, unlike drugs or other

contraband, is not inherently illegal, there must be reason to

believe that a phone may contain evidence of the crime. On

that score, the affidavit in this case stated only that, in the

affiant’s experience, gang members “maintain regular contact

14

with each other” and “often stay advised and share intelligence

about their activities through cell phones and other electronic

communication devices and the Internet.” A. 35.

That assessment might have added force if officers had

been investigating a more recent crime. Because the

information on a cell phone can enable reconstruction of the

“sum of an individual’s private life,” Riley, 134 S. Ct. at 2489,

the police often might fairly infer that a suspect’s phone

contains evidence of recent criminal activity, see id. at 2492,

perhaps especially when, as here, multiple perpetrators may

have coordinated the crime. But by the time police sought the

warrant in this case, more than a year had elapsed since the

shooting.

We require the existence of probable cause “at the time

that law enforcement applies for a warrant,” such that “the

freshness of the supporting evidence is critical.” Washington,

775 F.3d at 408; see also United States v. Grubbs, 547 U.S. 90,

95 n.2 (2006). Insofar as Griffith might have used a cell phone

to communicate with his associates around the time of the

crime, the search of the apartment would be grounded in an

assumption that he continued to possess the same phone more

than one year later. In the intervening period, though, he had

been confined for some ten months. What is more, even in the

event that Griffith, after his release, recovered possession of the

same phone he had owned at the time of the crime, he would

have had ample opportunity to delete incriminating

information from the device by the time of the search (which

occurred more than four months after his release). He had

every incentive to cleanse his phone, and also to refrain from

adding any new incriminating information to it: he had become

aware of the investigation of him by the time of his release.

15

In that light, the government gains little by relying on

Griffith’s making of calls to his associates on a recorded jail

line upon learning of the investigation. Griffith’s use of a

landline phone when confined sheds minimal light on whether

any cell phone he once owned would retain any incriminating

information if recovered in a search of his post-release

residence. Nor do Griffith’s calls from jail indicate how he

would communicate upon his release, when he could contact

his associates, if at all, in person. The jailhouse calls also

occurred in response to a specific triggering event—his

learning of the investigation. And, even then, those calls took

place several months before officers obtained and executed the

search warrant.

As a general matter, the likelihood that incriminating

evidence continues to exist in the place to be searched—taking

into account “the opportunities those involved in the crime

would have had to remove or destroy [incriminating] items”—

is an important consideration when assessing the existence of

probable cause. See 2 Wayne R. LaFave, Search & Seizure

§ 3.7(a) (5th ed. 2016). Here, that consideration weighs against

justifying a search of Lewis’s apartment on any expectation

that it would yield a phone that belonged to Griffith and

retained information about a crime he might have committed

more than one year earlier (and for which he had long known

he was a suspect).

In view of the limited likelihood that any cell phone

discovered in the apartment would contain incriminating

evidence of Griffith’s suspected crime, the government’s

argument in favor of probable cause essentially falls back on

our accepting the following proposition: because nearly

everyone now carries a cell phone, and because a phone

frequently contains all sorts of information about the owner’s

daily activities, a person’s suspected involvement in a crime

16

ordinarily justifies searching her home for any cell phones,

regardless of whether there is any indication that she in fact

owns one. Finding the existence of probable cause in this case,

therefore, would verge on authorizing a search of a person’s

home almost anytime there is probable cause to suspect her of

a crime. We cannot accept that proposition.

We treat the home as the “first among equals” when it

comes to the Fourth Amendment. Florida v. Jardines, 133 S.

Ct. 1409, 1414 (2013). The general pervasiveness of cell

phones affords an inadequate basis for eroding that core

protection.

B.

The lack of probable cause to search Lewis’s apartment for

any cell phone owned by Griffith itself renders the warrant

invalid under the Fourth Amendment. But the warrant was also

invalid for an additional reason: its overbreadth in allowing the

seizure of all electronic devices found in the residence. The

officers executing the warrant made good on that authorization,

seizing six cell phones and one tablet computer.

1. The Fourth Amendment requires that warrants

“particularly describ[e]” the “things to be seized.” U.S. Const.

amend. IV. That condition “ensures that the search will be

carefully tailored to its justifications, and will not take on the

character of the wide-ranging exploratory searches the Framers

intended to prohibit.” Garrison, 480 U.S. at 84. Consequently,

a warrant with an “indiscriminate sweep” is “constitutionally

intolerable.” Stanford v. Texas, 379 U.S. 476, 486 (1965). We

will hold a warrant invalid when “overly broad.” United States

v. Maxwell, 920 F.2d 1028, 1033-34 (D.C. Cir. 1990).

17

In obligating officers to describe the items to be seized

with particularity, the Fourth Amendment prevents “the

issu[ance] of warrants on loose, vague or doubtful bases of

fact.” Go-Bart Importing Co. v. United States, 282 U.S. 344,

357 (1931). In that way, “the requirement of particularity is

closely tied to the requirement of probable cause.” 2 LaFave,

Search & Seizure § 4.6(a). When a warrant describes the

objects of the search in unduly “general terms,” it “raises the

possibility that there does not exist a showing of probable cause

to justify a search for them.” Id. § 4.6(d).

The warrant in this case authorized police to search for and

seize “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).” A. 36. The

affidavit, as explained, failed to establish probable cause to

suspect that any cell phones or other electronic devices

belonging to Griffith and containing incriminating information

would be found in the apartment. Yet the warrant did not stop

with any devices owned by Griffith, which already would have

gone too far. It broadly authorized seizure of all cell phones

and electronic devices, without regard to ownership. That

expansive sweep far outstripped the police’s proffered

justification for entering the home—viz., to recover any

devices owned by Griffith.

Indeed, the terms of the warrant allowed officers

unfettered access to any electronic device in the apartment even

if police knew the device belonged to someone other than

Griffith. He shared the apartment with Lewis, his girlfriend,

and the warrant authorized police to search for and seize all of

her electronic devices. For instance, if officers executing the

warrant had seen Lewis using her cell phone in her apartment,

the warrant would have authorized them to seize that phone.

18

Yet the police unsurprisingly offered no explanation of why

Lewis’s devices could have been appropriately seized.

The warrant’s overbreadth is particularly notable because

police sought to seize otherwise lawful objects: electronic

devices. Courts have allowed more latitude in connection with

searches for contraband items like “weapons [or] narcotics.”

Stanford, 379 U.S. at 486 (internal quotation marks omitted).

But the understanding is different when police seize

“innocuous” objects. See Andresen v. Maryland, 427 U.S. 463,

482 n.11 (1976). Those circumstances call for special “care to

assure [the search is] conducted in a manner that minimizes

unwarranted intrusions upon privacy.” Id.; see also 2 LaFave,

Search & Seizure § 4.6(d).

Of course, even with searches of lawful objects, we may

allow a broader sweep when a reasonable investigation cannot

produce a more particular description. See Andresen, 427 U.S.

at 480 n.10. There may be circumstances in which police have

probable cause to seize a phone, yet still lack specific

information about the phone’s make or model. For example,

police might learn a suspect uses a phone through an informant,

and thus have no ability to describe the specific characteristics

of any phone belonging to him. In that sort of situation, we

recognize that some innocuous devices would need to “be

examined, at least cursorily,” to determine their relevance to

the investigation. Id. at 482 n.11.

But even then, it is no answer to confer a blanket

authorization to search for and seize all electronic devices. The

warrant must be tailored to the justifications for entering the

home. In this case, the warrant should have limited the scope

of permissible seizure to devices owned by Griffith, or devices

linked to the shooting. The Department of Justice in fact

encourages use of that sort of approach in certain situations.

19

See Office of Legal Educ., Searching and Seizing Computers

and Obtaining Electronic Evidence in Criminal Investigations,

Crim. Div., Dep’t of Justice 69-72 (2015),

https://www.justice.gov/sites/default/files/criminal-ccips/lega

cy/2015/01/14/ssmanual2009.pdf.

Such a warrant would have enabled police to sweep more

broadly when executing the search, but would have disabled

them from seizing devices plainly unrelated to the crime.

Officers, for example, could have examined a device they

initially thought might belong to Griffith, but they could not

have seized the device if they became aware it belonged to

Lewis. That sort of approach would “minimize[] unwarranted

intrusions upon privacy.” Andresen, 427 U.S. at 482 n.11.

2. The government does not deny that the warrant in this

case would be invalid insofar as it authorized the seizure of all

devices found in the apartment without regard to ownership.

The government instead argues that, for various reasons, the

warrant should be read more narrowly. We find those

arguments unpersuasive.

For instance, the government submits that the warrant

should be read in conjunction with the attached affidavit,

which, in the government’s view, would narrow the

permissible scope of seizure to the shooting under

investigation. We read warrants by reference to an affidavit,

however, only if the issuing judge uses “explicit words on the

warrant” indicating an intention to incorporate the affidavit’s

contents and “thereby limit [the warrant’s] scope.” Maxwell,

920 F.2d at 1032. Here, the warrant referenced the affidavit

only in noting generally that the “[a]ffidavit, herewith attached,

having been made before me by Detective Konstantinos S.

Giannakoulias,” provided “probable cause.” A. 26. We have

rejected similar statements as insufficient to demonstrate the

20

requisite intention to narrow a warrant’s sweep by

incorporating an affidavit. See Maxwell, 920 F.2d at 1032-33.

Nor does the government allay our concerns by suggesting

it would have attempted to determine which of the seized

devices in fact belonged to Griffith and would have sought a

separate warrant to search the contents of those—and only

those—devices. As an initial matter, the warrant, according to

its terms, seemingly would have authorized police to search

any electronic devices in the residence. At the federal level,

Federal Rule of Criminal Procedure 41 provides that, “[u]nless

otherwise specified,” a warrant authorizing seizure of

electronic storage media also “authorizes a later review of the

media or information consistent with the warrant.” Fed. R.

Crim. P. 41(e)(2)(B). The warrant here included no express

limitations on agents’ authority to examine any electronic

devices seized. To the extent the officers showed restraint

when executing the search, “this restraint was imposed by the

agents themselves, not by a judicial officer.” Groh, 540 U.S.

at 561 (internal quotation marks omitted).

In any event, our holding does not turn on whether the

police had the power to search the devices’ digital contents.

The police lacked probable cause to seize all electronic devices

in the home in the first place. The warrant was invalidly

overbroad in enabling officers to do so.

Finally, the government raises a procedural objection

concerning whether Griffith properly preserved a challenge to

the warrant’s particularity before the district court. We find no

merit in the government’s objection. Griffith’s overbreadth

argument is simply an extension of his probable cause

challenge, which he has pressed all along. He does not claim

that the warrant failed to list the particular items police would

seize. Instead, he claims that the warrant was overbroad in

21

authorizing “seizure of theoretical electronic devices that

belonged to people who were unrelated to the warrant’s

justifications.” Appellant Reply Br. 19. That is a species of

the same legal theory he urged before the district court: the

police lacked probable cause to seize all electronic devices in

the residence. See United States v. Peyton, 745 F.3d 546, 551-

52 (D.C. Cir. 2014). We agree, and hold the warrant was

constitutionally invalid for that reason.

III.

The invalidity of the search warrant would not necessarily

require excluding evidence recovered in its execution. Under

the good-faith exception to the exclusionary rule, “evidence

seized in reasonable, good-faith reliance on a search warrant”

need not be excluded, even if the warrant turns out to have been

unsupported by probable cause. Leon, 468 U.S. at 905 (citation

omitted). Here, the district court, while suggesting it might

disagree with the issuing judge’s probable-cause

determination, declined to suppress the firearm because it

concluded the good-faith exception applied. We find Leon’s

good-faith exception inapplicable in the particular

circumstances of this case.

As the Court explained in Leon, the good-faith exception

does not apply if a warrant is “based on an affidavit so lacking

in indicia of probable cause as to render official belief in its

existence entirely unreasonable.” Id. at 923 (internal quotation

marks omitted). When applying that standard, we consider the

objective reasonableness not only of “the officers who

eventually executed the warrant, but also of the officers who

originally obtained it or who provided information material to

the probable-cause determination.” Id. at 923 n.24. We thus

ask whether an objectively reasonable officer could think the

22

affidavit established probable cause, keeping in mind the

inadequacy of a “bare bones” affidavit. Id.

We conclude that the affidavit in this case fell short to an

extent precluding good-faith reliance on the warrant. As

explained, the government’s theory of probable cause to search

the apartment runs as follows: (i) Griffith might own a cell

phone; (ii) if so, his phone might be found in the residence; and

(iii) if so, the phone might retain incriminating

communications or other information about a crime committed

more than one year earlier. Whatever may be the

reasonableness of any of those inferences standing on its own,

demonstrating probable cause required adequately establishing

all three in combination. The affidavit did not approach doing

so. It provided no explanation at all of whether Griffith might

own a phone or whether any such phone might be in his home.

And with regard to whether any phone would retain any

incriminating information about a shooting occurring more

than one year beforehand, it observed only that gang members

often stay in contact about their activities.

Additionally, the affidavit sought, and the warrant granted,

authorization to search for and seize every electronic device

found in the home. The warrant’s material overbreadth in that

regard underscored the police’s unawareness of the existence

of any such devices in the first place (much less the existence

of any belonging to Griffith): given that police did not know

whether Griffith owned a cell phone or any other electronic

device, they could not describe ex ante the devices they would

search for and seize. But it was no solution to rely on a catchall

provision authorizing seizure of every device they might

happen to find in the house. Nothing in the affidavit or warrant

supported—or could have supported—probable cause to seize

any and all phones, tablets, computers, and other electronic

devices in the apartment.

23

With regard to the warrant’s overbreadth, our dissenting

colleague emphasizes that, in one previous decision, we

applied the good-faith exception to deny suppression of

evidence seized under an overbroad warrant. See infra at 8-10

(Brown, J., dissenting). But that decision, United States v.

Maxwell, 920 F.2d 1028, did not purport to hold that the good-

faith exception always applies in the case of an overbroad

warrant. The inquiry is a contextual one, and courts have

denied reliance on the good-faith exception when a warrant

sweeps too broadly in describing the items subject to seizure.

See United States v. Leary, 846 F.2d 592, 606-10 (10th Cir.

1988). In Maxwell, moreover, we cast no doubt on the

existence of probable cause to suspect the presence in the

searched residence of at least some incriminating items

encompassed by the warrant. Here, though, for the reasons

explained, the affidavit failed to establish probable cause to

believe that any cell phone (or other electronic device)

containing incriminating information about Griffith’s

suspected offense would be found in the apartment.

Taken together, those failings as to probable cause and

overbreadth bring the warrant beyond the good-faith

exception’s reach. In so holding, we stress that the inquiry is

an objective one. We have no occasion to suspect any ill

motive or subjective bad faith on the part of the officers who

prepared and executed the warrant. The Supreme Court has

found Leon’s objective standard unmet notwithstanding the

absence of any reason to suppose that officers acted in bad faith

in relying on an invalid warrant. See Groh, 504 U.S. at 563-65

& n.8. We do the same here.

Further, we do not doubt that most criminals—like most

people—have cell phones, or that many phones owned by

criminals may contain evidence of recent criminal activity.

Even so, officers seeking authority to search a person’s home

24

must do more than set out their basis for suspecting him of a

crime. The affidavit in this case might have established the

authority to seize an individual; it fell materially short of

justifying a search of his home.

IV.

Finally, the government argues we should decline to

suppress the firearm because Griffith abandoned the gun by

throwing it out of the window. Griffith, though, tossed the

firearm in response to the police’s announcement that they had

a warrant to search the apartment. Because the warrant was

invalid and the officers thus lacked authority to execute the

announced search, we find suppression of the firearm to be

warranted.

Officers may lawfully seize property that has been

voluntarily abandoned. See United States v. Thomas, 864 F.2d

843, 845-46 (D.C. Cir. 1989). But we do not treat an item as

voluntarily abandoned when a person discards it “due to the

unlawful activities of police officers, as where the disposal was

prompted by police efforts to make an illegal arrest or search.”

2 Wayne R. LaFave et al., Criminal Procedure § 3.2(h) (4th ed.

2016) (internal quotation marks omitted). For example, in

United States v. Wood, 981 F.2d 536 (D.C. Cir. 1992), we

ordered the suppression of a gun dropped by a suspect after

police had unlawfully ordered him to “halt right there,” id. at

537, 541. Although the suspect had discarded the gun, we

found “a direct nexus between the illegal seizure and the

recovery of the weapon.” Id. at 541; see also United States v.

Brodie, 742 F.3d 1058, 1063 (D.C. Cir. 2014); United States v.

Lewis, 921 F.2d 1294, 1302 (D.C. Cir. 1990). Our sister

circuits likewise uniformly decline to deem evidence

voluntarily abandoned when it is thrown away as the direct

consequence of officers’ efforts to execute an unlawful search

25

or seizure. See United States v. Stephens, 206 F.3d 914, 917

(9th Cir. 2000); United States v. Austin, 66 F.3d 1115, 1118

(10th Cir. 1995).

Similarly, we cannot treat Griffith’s actions here as a

voluntary abandonment. Griffith tossed the gun out of the

window only after officers had knocked on the door and

announced a search warrant. The officers’ invocation of a

warrant was tantamount to a pronouncement that Griffith had

“no right to resist the search.” See Bumper v. North Carolina,

391 U.S. 543, 550 (1968). As soon as police claimed to have

a search warrant, Griffith knew he had no choice but to grant

them access to his home, either by opening the door and

allowing them inside or by submitting to a forced entry after a

“reasonable wait time.” See Hudson v. Michigan, 547 U.S.

586, 590 (2006) (internal quotation marks omitted).

The government does not dispute that Griffith abandoned

the gun in reaction to the officers knocking on the door and

announcing they had a search warrant. The government

nonetheless contends that, under California v. Hodari D., 499

U.S. 621 (1991), there was no need to suppress the firearm. In

that case, a suspect ran from a pursuing officer instead of

submitting to the latter’s show of authority calling for him to

stop; and in the course of his flight, he dropped drugs he had

been carrying. See id. at 625-26. The “narrow question”

considered by the Court was “whether, with respect to a show

of authority . . . a seizure occurs even though the subject does

not yield.” Id. at 626. The Court concluded that no seizure had

taken place because the subject did not submit to the officer’s

assertion of authority. And because there had been no seizure,

the abandoned drugs were not the fruit of any seizure and thus

need not have been excluded. Id. at 629.

26

Hodari D. differs from this case in significant respects.

That case involved an officer’s efforts to seize a person on the

street, not to search a person’s home. An “officer’s leave to

gather information is sharply circumscribed when he steps off

[public] thoroughfares and enters the Fourth Amendment’s

protected areas,” Jardines, 133 S. Ct. at 1415, with “the home”

standing at “the Amendment’s very core,” id. at 1414 (internal

quotation marks omitted). And regardless of the venue, to the

extent the attempted seizure of a fleeing person in Hodari D.

could have implications for the announced search of a home,

Hodari D. turned on the subject’s refusal to submit to the

officer’s assertion of authority. See 499 U.S. at 626-27. If a

person submits to the officer’s show of authority, Hodari D. is

inapplicable. See Wood, 981 F.2d at 539-41. Here, the officers,

upon announcing their possession of a search warrant,

proceeded to execute their search of the apartment without any

resistance from Griffith or the other occupants.

The government does not dispute that suppression of the

firearm would be appropriate if, at the time Griffith tossed it

out of the window, the officers had already begun crossing the

threshold of the door. At that point, the government evidently

allows, a search would have commenced and exclusion of any

relinquished evidence would be required. But Griffith, the

government emphasizes, abandoned the gun before the officers

entered the house—i.e., while they stood at the door poised to

enter after having announced they had a search warrant. We

see no basis for drawing such a rigid distinction between the

officers’ announcement of a warrant and their ensuing entry.

Imagine, for example, that police knock on a home’s door,

falsely claim to have a search warrant, and then ask the resident

to hand over all firearms when she comes to the door. She

might comply, as the officers, by invoking a warrant, will have

effectively announced that she has no right to resist their entry.

27

See Bumper, 391 U.S. at 550. Under the government’s theory,

there presumably would be no need to suppress the firearms

because the officers would have obtained them without

entering the home. We reject the suggestion that the

admissibility of firearms obtained by virtue of the officers’

misconduct in such a situation would turn on whether they

happened to have placed one foot inside the home. Indeed, the

Supreme Court has elsewhere explained that a person’s Fourth

Amendment interests in his home “would be of little practical

value if the State’s agents could stand in a home’s porch or side

garden and trawl for evidence with impunity.” Jardines, 133

S. Ct. at 1414.

To be sure, officers generally may approach a home and

knock on the door without raising any Fourth Amendment

concerns. If an occupant responds to the officers’ knock by

abandoning (or voluntarily turning over) evidence, there will

have been no Fourth Amendment violation. But that is

because, “[w]hen law enforcement officers who are not armed

with a warrant knock on a door, they do no more than any

private citizen might do.” Kentucky v. King, 563 U.S. 452, 469

(2011) (emphasis added). When an officer claims to have a

warrant, however, she invokes authority unavailable to a

private citizen. To conclude otherwise would allow the police

to go door-to-door announcing search warrants in the hopes

that occupants would respond by abandoning contraband or

other evidence within the officers’ view.

For those reasons, we decline in this case to draw a

talismanic line at the home’s door. Once the police assert

authority to search a home pursuant to an invalid warrant,

evidence relinquished in response to the officers’

announcement is unlawfully obtained. Here, consequently, we

hold that the firearm abandoned in response to the police’s

28

announcement of an invalid search warrant must be

suppressed.

* * * * *

For the foregoing reasons, we reverse the judgment of the

district court and vacate Griffith’s conviction.

So ordered.

BROWN, Circuit Judge, dissenting: Today the Court’s

opinion attempts to write the good faith exception out of our

case law. Nothing in the record suggests the officers involved

in this case were doing anything other than attempting to solve

an unsolved murder while scrupulously observing the letter of

the law. Yet, today’s opinion impugns their motives by

declaring their reliance upon a search warrant approved by a

disinterested magistrate to be “entirely unreasonable.” It also

misconstrues the very purpose of the exclusionary rule and the

point of the good faith exception by applying the former and

rejecting the latter in a way that contradicts precedent from

both the Supreme Court and this Court. Because I believe the

good faith exception to the exclusionary rule easily

encompasses the facts of this case, I respectfully dissent.

I.

A.

As explained by the Supreme Court, “[t]he Fourth

Amendment protects the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures . . . [but] says nothing about suppressing

evidence obtained in violation of this command.” Davis v.

United States, 564 U.S. 229, 236 (2011). Consequently, the

use of evidence obtained pursuant to an unlawful search or

seizure “work[s] no new Fourth Amendment wrong.” United

States v. Calandra, 414 U.S. 338, 354 (1974). Moreover, the

exclusion of evidence is “not a personal constitutional right,”

Stone v. Powell, 428 U.S. 465, 486 (1976), “nor is it designed

to redress the injury occasioned by an unconstitutional search,”

Davis, 564 U.S. at 236. Instead, the exclusionary rule is a

“prudential doctrine” created to “compel respect” for the

Fourth Amendment’s guaranty against unreasonable searches

and seizures. Id.

2

Deterring law enforcement officials from engaging in

future Fourth Amendment violations supports this goal.

Herring v. United States, 555 U.S. 135, 141 (2009); Calandra,

414 U.S. at 348. However, the mere fact that the exclusion of

evidence would result in deterrence is alone insufficient to

justify the exclusion of evidence. See Hudson v. Michigan, 547

U.S. 586, 596 (2006) (stating the existence of deterrence

benefits “is a necessary condition for exclusion,” but not a

“sufficient” one); see also Calandra, 414 U.S. at 350 (stating

the Fourth Amendment does not “require[] adoption of every

proposal that might deter police misconduct”). For this reason,

the Supreme Court has limited the exclusionary rule’s

application to situations where the rule’s deterrence purpose is

“most efficaciously served.” United States v. Leon, 468 U.S.

897, 908 (1984). Thus, “[w]here suppression fails to yield

‘appreciable deterrence,’ exclusion is ‘clearly . . .

unwarranted.’” Davis, 564 U.S. at 237 (quoting United States

v. Janis, 428 U.S. 433, 454 (1976)).

The calculus is simple: The suppression of evidence that

is otherwise probative and reliable results in “substantial social

costs.” Leon, 468 U.S. at 907. “The principal cost of applying

the rule is, of course, letting guilty and possibly dangerous

defendants go free—something that offends basic concepts of

the criminal justice system.” Herring, 555 U.S. at 141.

Furthermore, if applied indiscriminately, courts run the risk of

“generating disrespect for the law and administration of

justice.” Stone, 428 U.S. at 491. Society, the Supreme Court

has held, “must swallow this bitter pill” only “as a last resort.”

Davis, 564 U.S. at 237. Therefore, in addition to showing the

suppression of evidence will significantly deter unlawful

behavior in the future, parties arguing for suppression must

overcome the “high obstacle” of the rule’s “costly toll upon

truth-seeking and law enforcement objectives” through

3

demonstrating the benefits of suppression outweigh these

significant costs. Herring, 555 U.S. at 141.

In United States v. Leon, the Supreme Court recognized a

good faith exception to the exclusionary rule for evidence

obtained by law enforcement officers acting in “objectively

reasonable reliance” on a search warrant issued by a “detached

and neutral magistrate” that has ultimately been found to be

invalid. Leon, 468 U.S. at 913, 920–22. The Court explained

“the exclusionary rule is designed to deter police misconduct

rather than to punish the errors of judges and magistrates.” Id.

at 916. Furthermore, “[i]n the ordinary case, an officer cannot

be expected to question the magistrate’s probable-cause

determination.” Id. at 921. Thus, “a warrant issued by a

magistrate normally suffices to establish that a law

enforcement officer has acted in good faith in conducting the

search.” Id. at 922.

The only instances in which the good faith exception does

not apply are when the law enforcement officers are “reckless,”

“dishonest,” or “could not have harbored an objectively

reasonable belief in the existence of probable cause.” Id. at

926; see also Illinois v. Krull, 480 U.S. 340, 348–49 (1987)

(stating “evidence should be suppressed only if it can be said

that the law enforcement officer had knowledge, or may

properly be charged with knowledge, that the search was

unconstitutional”). Accordingly, if a magistrate relies upon a

“bare bones” affidavit that is “so lacking in indicia of probable

cause as to render official belief in its existence entirely

unreasonable,” suppression is appropriate. Leon, 468 U.S. at

923 & n.24. 1 However, the use of such an extreme remedy

1

The Court contends its result is “the same” as Groh v. Ramirez, 540

U.S. 551 (2004), where, the Court claims, “[t]he Supreme Court . . .

found Leon’s objective standard unmet notwithstanding the absence

4

when law enforcement officers have sought a warrant is

extremely rare, and the Supreme Court has only applied the

exclusionary rule to such situations where police conduct was

both intentional and highly culpable. Herring, 555 U.S. at

143–44; see also Davis, 564 U.S. at 240 (stating the Supreme

Court has “never applied the exclusionary rule to suppress

evidence obtained as a result of nonculpable, innocent police

conduct”).

Furthermore, Supreme Court case law makes clear that a

“bare bones” affidavit is one supported only by the “bare

conclusions of others.” Illinois v. Gates, 462 U.S. 213, 239

(1983); see also Nathanson v. United States, 290 U.S. 41, 44–

47 (1933) (invalidating a warrant supported only by an

affidavit stating the officer “ha[d] cause to suspect and [did]

believe that” liquor illegally brought into the United States was

located on certain premises); Aguilar v. Texas, 378 U.S. 108,

109–15 (1964) (invalidating a warrant based solely on an

officer’s statement that he had “received reliable information

from a credible person and [did] believe” that heroin was stored

in a particular home); Giordenello v. United States, 357 U.S.

480, 486 (1958) (striking a warrant issued where the complaint

contained “no affirmative allegation that the affiant spoke with

personal knowledge of the matters contained therein,” failed to

of any reason to suppose that officers acted in bad faith in relying on

an invalid warrant.” Maj. Op. at 24. But Groh cited Leon to hold

“the warrant was so obviously deficient that we must regard the

search as ‘warrantless’ within the meaning of our case law.” See 540

U.S. at 558. Moreover, the Court’s pin cites to Groh include the

Supreme Court explaining why “no reasonable officer could believe”

the warrant at issue was constitutionally sound. See id. at 564–65.

When the Court relies on a case where an officer is found plainly

incompetent—the standard for piercing his qualified immunity—

how can the Court credibly claim it is not passing judgment on the

officers relying on the warrant here? See Maj. Op. at 24.

5

“indicate any sources for the complainant’s belief,” and did not

set forth “any other sufficient basis upon which a finding of

probable cause could be made”). Thus, only where an affidavit

is “so lacking in sworn and particularized information that not

even an order of court [could] have justified [the search]” can

it be properly characterized as bare bones. See Herring, 555

U.S. at 143–44.

B.

The warrant in this case established probable cause for the

search. The affidavit submitted by Detective Giannakoulias

begins by giving the exact address of the apartment to be

searched and describing the building in which it is located. It

then details Detective Giannakoulias’s extensive experience as

a law enforcement officer, including 22 years of service at the

Metropolitan Police Department, formal training in criminal,

death, gang, and narcotics investigations, 10 years of

experience investigating gang-related murders, and the

execution of over 500 search warrants for various drug and

violent crimes. The next 8 pages of the affidavit provide

detailed information of the investigation of the murder of Mico

Briscoe—a crime that took place over a year before police

sought the current search warrant—and Ezra Griffith’s

connection to the crime.

The affidavit described the murder and the existence of

video footage capturing a gold, four-door sedan leaving the

scene of the crime with two murder suspects in it. It then

described the police’s efforts to identify and locate the car

captured by the surveillance footage, which eventually led

them to Ms. Jesimenia Queen—Griffith’s mother—who they

then interviewed about the car and its connection to the Briscoe

murder. Queen confirmed the car used to belong to her and

was used exclusively by Griffith, “a validated member” of the

6

“E Street Bangaz” gang. App’x 30–31. After he became aware

of this interview, Griffith made jail house calls to numerous

people, including his mother, his grandmother, Dwayne Hilton,

and Sheree Lewis. These calls often discussed the police

interview about the car and its association with the Briscoe

murder. 20 days after making these calls, Griffith was released

from prison, and police were eventually able to locate his

address as being with Lewis at the location for which they

sought a warrant.

Only after providing all of these details did Detective

Giannakoulias rely on his training and experience to assert that

gang members maintain regular contact with each other, even

while incarcerated, and they discuss criminal activities through

phones or other electronic devices. The affidavit ends by

requesting the seizure of:

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 jump/zip drives), evidence of

ownership of such devices, subscriber

information relating to the electronic devices,

any information describing, referencing, or

mentioning in anyway the [shooting death of

Mico Briscoe], 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

of Mico Briscoe, and any indicia of occupancy

of the premises described above.

App’x 36. After reviewing Detective Giannakoulias’s

affidavit, a magistrate from the Superior Court of the District

7

of Columbia determined that it established probable cause and

authorized law enforcement officers to seize the items listed in

the affidavit.

Even if this Court were to assume Detective

Giannakoulias’s affidavit failed to establish probable cause to

search Lewis’s apartment, I can find no discernable basis to

justify the Court’s assertion that the warrant was “so lacking in

indicia of probable cause as to render official belief in its

existence entirely unreasonable.” Maj. Op. at 22. Based on the

affidavit, it was reasonable for the magistrate to conclude

Griffith was either directly involved with the Briscoe murder

or had vital information regarding its commission.

Additionally, the police knew Griffith actively communicated

with both his family and other suspects about the Briscoe

murder while he was incarcerated. These communications

provided concrete facts to support Detective Giannakoulias’s

assertion that gang members share intelligence with each other,

even while incarcerated. Moreover, there was at a minimum a

fair probability that Griffith would continue to have

conversations about the investigation of the Briscoe murder,

given the close proximity of his release from prison with his

last jailhouse call—a mere 20 days. An investigator’s common

sense would also lead him to conclude that Griffith would

speak much more freely and candidly about his involvement in

the Briscoe murder once his communications were not being

monitored by the police. 2 Thus, concrete facts existed from

which investigators could infer Griffith was involved with the

Briscoe murder and was talking to his confederates about it.

2

At numerous points during his jailhouse calls, Griffith begins

discussing the murder and the investigation but quickly changes the

subject so as to avoid making any incriminating statements.

8

In dismissing these logical inferences, the Court focuses

on the fact that the affidavit does not mention Griffith owning

or using a cell phone. But these statements ignore the realities

of the world in which we live and jettison the common-sense

inquiry judges are to make when determining the existence of

probable cause. See Gates, 462 U.S. at 238 (“The task of the

issuing magistrate is simply to make a practical, common-sense

decision whether . . . there is a fair probability that contraband

or evidence of a crime will be found in a particular place.”); see

also United States v. Davis, 617 F.2d 677, 692 (D.C. Cir. 1979)

(stating judges evaluating the existence of probable cause

“need not confine their evaluations within rigorous legalistic

boundaries but instead may use their common sense”). The

Supreme Court has recognized that “a significant majority of

American adults now own [cell] phones.” Riley v. California,

134 S. Ct. 2473, 2484 (2014). This statement is confirmed by

the Pew Research Center, whose research indicates that in 2013

over 90% of American adults owned a cell phone. See Lee

Rainie, Cell Phone Ownership Hits 91% of Adults, PEW

RESEARCH CENTER (June 6, 2013),

http://www.pewresearch.org/fact-tank/2013/06/06/cell-phone-

ownership-hits-91-of-adults/. Furthermore, this number jumps

up to 97% for adults between ages 18 and 34. Id. Thus, the

Court’s assertion that the affiant’s failure to allege that Griffith

owned a cell phone somehow resulted in a bare bones affidavit

devoid of any indicia of probable cause that Griffith did, in fact,

own a cell phone is “[p]ure applesauce.” King v. Burwell, 135

S. Ct. 2480, 2501 (2015) (Scalia, J., dissenting).

While the Court is, admittedly, on firmer grounds when

assessing the warrant’s shortfalls as to other electronic devices,

this is an issue of breadth, not whether there was any indicia of

probable cause, and this Court has never refused to apply the

good faith exception because a warrant was overbroad. On the

contrary, this Court’s previous approach has been to “decline

9

to order the suppression of the evidence seized pursuant to” a

warrant “we conclude[d] . . . was overly broad” so long as the

law enforcement officers “reasonably relied on the warrant in

good faith.” United States v. Maxwell, 920 F.2d 1028, 1034

(D.C. Cir. 1990). In United States v. Maxwell, this Court

applied the good faith exception to a fatally overbroad warrant

authorizing the seizure of all of the following:

any and all seals representing or appearing to

represent any agency of the United States; any and all

writings and documents representing or appearing to

represent any agency of the United States; any

interstate or foreign correspondence, handwritten

notes, carbons, bank records, negotiable instruments,

logs, ledgers, address books, travel documents,

memoranda or notations pertaining to interstate or

foreign commerce; transmissions made pertaining to

interstate or foreign commerce; any and all documents

generated in connection with or evidencing a scheme,

artifice or devise of transactions in interstate or

foreign commerce; any electronic memory

equipment, materials, tapes, records, discs, discettes

or any other medium used to store information

pertaining to interstate or foreign commerce; all

machinery, equipment, or transmitting devices used or

capable of being used to send via interstate or foreign

commerce: sounds, signals, pictures, or writings

transmitted by wire for the purpose of executing such

scheme or artifice.

Id. at 1033. Comparing the Maxwell warrant to the one at issue

in this case, I see no discernable reason why one falls within

the good faith exception and the other does not. If anything,

the warrant at issue in this case is much narrower. While the

Maxwell warrant essentially allowed police to seize “all or

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virtually all of [the defendant’s] business records and

equipment,” id., the warrant in this case is essentially limited

to any electronic devices owned or likely to be used by Griffith

and capable of electronically communicating or storing

information and any documents relating to the Briscoe murder,

see App’x 36.

Moreover, the warrant in this case did not authorize a

general search of all of Griffith’s records and the files

contained within any electronic devices discovered. On its

face, the warrant only authorized the seizure of the electronic

devices, not a search of their content. As explained by the

government both in its brief and at oral argument, an additional

search warrant was required in order for law enforcement

officers to search within these devices. Gov’t Br. 29–30 &

n.15; Oral Arg. Rec. at 24:40–25:02. These additional

protections show that the officers here were operating in the

real, tech-savvy world and doing their best to adapt available

tools to act within the law, all while investigating an unsolved

murder for which they had few leads prior to connecting

Griffith to the car captured on videotape leaving the scene of

the crime. While this Court seems unconcerned with

handcuffing the ability of police to investigate crimes, our

precedent emphasizes that our probable cause analysis should

reflect a proper “concern[] with [the] realities of administration

of criminal justice.” United States v. Vaughn, 830 F.2d 1185,

1186 (D.C. Cir. 1987).

Equally troubling is the Court’s willingness to cast aside

the vital role an officer’s training and experience play in

establishing probable cause and good faith. The affiant in this

case had 22 years of experience working as a law enforcement

officer and had spent 10 of those years specializing in gang-

related murders. An officer with these credentials should be

entitled to some deference or, at a minimum, not to have his

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reliance on his training and extensive experience maligned as

wholly unreasonable. However, this is precisely what the

Court has done, despite the fact we have repeatedly held an

officer’s training and experience can play a vital role in

establishing probable cause. See United States v. Cardoza, 713

F.3d 656, 661 (D.C. Cir. 2013) (finding an officer’s knowledge

based on his training and experience reinforced finding

probable cause); United States v. Johnson, 437 F.3d 69, 72

(D.C. Cir. 2006) (finding an affidavit based largely on the

affiant’s professional experience to be sufficient to establish

probable cause); United States v. Thomas, 989 F.2d 1252,

1254–55 (D.C. Cir. 1993) (same).

Recognition of the realities of criminal investigations and

common sense seem conspicuously absent from the Court’s

approach. Relying on a series of nonsequiturs, the Court

creates a world in which it is unreasonable to assume Griffith’s

behavior will be similar to 90% of the adult population (i.e. he

will have access to one or more cell phones); inconceivable that

recent hot leads in a stale murder investigation might engender

conversation among gang members who were likely involved

in the killing; and risible to think leads relating to criminal

activity might be found in the call history, texts, or e-mail of

several phones to which Griffith had access, rather than only

on a phone for which he is the listed subscriber. Oddly, the

Court does think the warrant establishes probable cause to

arrest Griffith and subject him to a search incident to arrest and

an inventory booking search, although the same facts are not

sufficient to sustain a search warrant or to demonstrate good

faith on the part of the officers.

The facts of this case illustrate precisely why the good

faith exception is so vital to our Fourth Amendment

jurisprudence. As the Court acknowledges, there is no

indication of bad faith or recklessness on the part of these

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officers. They were diligently trying to build their case, relying

on the limited—but promising—evidence available to them.

Their investigation into the Briscoe murder—a crime that had

occurred over a year before they sought the warrant to search

Griffith’s apartment—had reached a lull until they discovered

Griffith’s car and connected it to him. Once they made this

connection, they did not act rashly or hastily by attempting to

coerce a confession out of Griffith but instead approached their

investigation in a methodical and deliberate manner in order to

discover the truth. They collected evidence by interviewing

Griffith’s mother and reviewing his jailhouse calls. After

coming to the conclusion that Griffith was probably involved

in the Briscoe murder and that their recent investigatory

progress might trigger a desire to communicate with the other

suspects, they sought a warrant to obtain any devices which

might contain incriminating statements from Griffith or other

leads. Thereafter, they planned to obtain yet another warrant

to authorize them to search any electronic devices they seized.

Nothing in the facts suggest they sought to deceive the

magistrate or that they did anything other than present the

limited evidence they had in hopes that it would establish

probable cause. Once the magistrate held their evidence

sufficient, they relied upon that determination to search the

apartment, and they did so in a way that complied with the

law—i.e. knocking and announcing before entering and

limiting their search to the confines of the warrant. The search

confirmed their instincts were good. They recovered six cell

phones and an electronic tablet—certainly an atypical number

of phones for a household consisting of two adults. In the

process of conducting the search, they discovered Griffith was

guilty of another crime: unlawfully possessing a firearm.

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II.

And that is perhaps the most troubling part of this case at

the end of the day. There is no doubt that Griffith is guilty of

the crime for which he has been convicted. By suppressing the

gun Griffith unlawfully possessed, the Court is going to

“offend[] basic concepts of the criminal justice system” by

allowing a “guilty and possibly dangerous defendant[] go free.”

Herring, 555 U.S. at 141. And they are allowing this to happen

not because the police intentionally violated the law or acted in

a highly-culpable manner, but rather because the police relied

upon a neutral and detached magistrate who determined

probable cause existed. This result is directly contrary to the

purpose of the exclusionary rule and Supreme Court precedent

that reserves suppression only for the most serious police

misconduct. If courts are going to impose a remedy as extreme

as excluding evidence that is probative, reliable, and often

determinative of a defendant’s guilt, we have a duty to protect

officers who are doing their best to stay within the bounds of

our ever-evolving jurisprudence. We live in a society where

virtually every action an officer takes is now being heavily-

scrutinized. Thus, the need for vindication when law

enforcement officers behave in an exemplary fashion is more

critical than ever. Unfortunately, the officers in this case are

not going to get the vindication they deserve. Furthermore, I

have no doubt this case will be used in future cases to further

undermine the good faith exception until either this Court

sitting en banc or the Supreme Court steps in to cure today’s

grievous error. Accordingly, I respectfully dissent.