Warrant for Seizure of Electronic Device Implies Authority to Search, Seventh Circuit

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Starting in early February 2015, Ronnie Cornell Cosby used his cell phone to take photos of T.L., a 15-year old runaway, post the photos to the internet, and negotiate with men who then paid Cosby to have sex with the girl in Hammond, Indiana.

On February 12, 2015, Cosby told T.L. they were traveling to a new location to engage in further prostitution. That night, Cosby drove T.L. from Indiana to a Howard Johnson motel in Lansing, Illinois. There, Cosby took more pictures of T.L. and posted them to the internet to find men who would pay for sex. Over the next four days, Cosby negotiated and T.L. had sex with multiple men in the motel room.

On February 15, 2015, Cosby and T.L checked out of the Lansing motel. Ultimately, they returned to Cosby’s Hammond, Indiana apartment. On February 18, 2015, Cosby learned the police were looking for T.L. and left her with a neighbor. The next day, Hammond police arrested Cosby’s neighbor and interviewed T.L.

Hammond police eventually arrested Cosby and on March 17, 2015, obtained a state search warrant to search his girlfriend’s apartment. The warrant authorized the police to seize electronic devices, including a “black in color touch screen cellular telephone which belongs to COSBY.” The warrant also authorized the police to seize passwords and data security devices “in order to facilitate the search” of the seized devices.

A federal grand jury subsequently indicted Cosby on multiple counts, including knowingly transporting a minor in interstate commerce with the intent that she engage in prostitution. Cosby moved to suppress all evidence seized from his cell phone pursuant to the state search warrant. He argued that the warrant authorized seizure only of the phone, and that the police exceeded the warrant’s scope by extracting, downloading, and reviewing the phone’s contents. The district court rejected the motion reliant on the Seventh Circuit’s 2017 opinion in United States v. Fifer, and a jury ultimately found Cosby guilty on multiple charges.

Cosby then appealed to the U.S. Court of Appeals for the Seventh Circuit, seeking a new trial based on multiple claims of error, including the district court’s denial of his motion to suppress.

Represented by University of Notre Dame law students under supervision of a licensed attorney, Cosby requested that the Seventh Circuit reconsider its decision in Fifer, which held that a search warrant for a cell phone necessarily and implicitly includes electronically stored information on that phone. In support, Cosby argued that, per U.S. Supreme Court precedent from 2014, officers must generally secure a warrant before conducting a search of data on a cell phone. Cosby then relied upon a Ninth Circuit opinion to argue that seizure of a cell phone does not implicitly authorize a search of all electronically stored information in that cell phone.

The Seventh Circuit was unmoved by Cosby’s argument. The court reaffirmed Fifer, holding that in the Seventh Circuit, a state warrant that explicitly authorized the police to seize an electronic device additionally implicitly authorized them to search that device as well. “Cosby’s citation to out of circuit precedent is unavailing,” the court wrote in conclusion.

The Seventh Circuit additionally denied Cosby’s other bases for requesting a new trial and affirmed Cosby’s conviction.

Read the full opinion: United States v. Cosby.

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