Inclusion of Illegally Obtained Evidence Does Not Defeat Detailed Warrant Application

Mark Turner persuaded Demontae Bell to help him sell several stolen firearms. When Turner later was arrested on charges related to manufacturing methamphetamine, he cooperated with law enforcement, provided them information about the firearms sale, and aided the government in targeting Bell. After a controlled transaction, Turner showed FBI Special Agent Jason Nixon a photo of an AK-47 on his phone, which he said Bell had texted to him.

As a result of Bell’s cooperation, police arrested Bell for being a felon in possession of a firearm, namely the AK-47. Upon Bell’s arrest, without a warrant, a police officer opened Bell’s flip phone and viewed a photograph of an AK-47 on the phone’s home screen. Agent Nixon subsequently applied for and was granted a warrant to search Bell’s phone.

Executing the warrant, law enforcement found a photo with an AK-47 on it. That information was then relied upon to procure a second warrant to extract metadata on Bell’s photo files, which showed the AK-47 photo had been texted to Turner’s number.

Prior to trial, Bell moved to quash his arrest warrant and to suppress the evidence obtained from his cell phone. The district court agreed with Bell that the arresting police officer had violated the Fourth Amendment by searching Bell’s cell phone without a warrant and absent exigent circumstances. But, the district court held that, even omitting the information obtained from that illegal search, both warrants were supported by probable cause.

Bell was later convicted following a bench trial. He then appealed the district court’s failure to suppress the evidence obtained from his cell phone.

On appeal to the U.S. Court of Appeals for the Seventh Circuit, Bell contended that the district court erred in admitting the photo of the AK-47 and the electronic data tied to it. He argued that without the illegally obtained photograph of the AK-47, Agent Nixon would not have established probable cause to obtain the first warrant. And without the first warrant, he argued, the govern could not have obtained the second warrant.

The Seventh Circuit examined whether there was an “independent source” for the AK-47 photo that would permit admission of the illegally obtained photo, “if officers independently acquired it from a separate, independent source.” The court first noted that prior to obtaining the first warrant, Turner had provided Agent Nixon with the photo of the AK-47 and told him that Bell had texted it to him. That discovery was lawful.

However, the first search warrant still included tainted information from the illegal search. The appeals court therefore asked two questions. First, would the warrant have been issued even without considering the tainted information? And, second, was the officer’s decision to seek the warrant prompted by the illegal search?

Affirmatively answering the first question, the court held the affidavit supporting Agent Nixon’s application for the first warrant “contained an array of other facts,” including a statement that Turner showed Agent Nixon the AK-47 photo, sufficient to establish probable cause.

Turning to the second question, the court stated that a recording of the controlled transaction made clear that Bell had a photo of the stolen AK-47 on his phone and that Agency Nixon was aware of that recording and the photo Turner showed him. The court therefore held it “hard to believe” Agency Nixon would not have sought a warrant for Bell’s phone absent the arresting police officer’s illegal search.

The Seventh Circuit thus affirmed the district court’s denial of Bell’s motion to suppress the evidence from the first warrant. “For the same reasons,” the court further held the evidence from the second warrant was also properly admitted into evidence at trial.

Bell’s conviction therefore stands.

Read the full opinion: United States v. Bell


This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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