70 F.4th 36
1st Cir.2023Background
- In June–August 2018 police investigated allegations that Derek Sheehan sexually assaulted a child, uncovered that he had created Apple IDs to monitor a victim’s texts, and developed other evidence of deceptive conduct.
- On August 17, an assistant clerk issued a search warrant (No. 1858SW0035) authorizing search of Sheehan’s home and person for electronic devices; officers executed it, seized multiple devices, and arrested Sheehan.
- During the execution an officer forcibly removed Sheehan’s cell phone from his wife’s hand; the phone was seized and later reviewed by the State Police Computer Crimes Unit.
- On August 29 Officer Puricelli sought a second warrant (No. 1858SW0036) to search the seized devices for child pornography based on a trooper’s report that, while downloading, he saw “images of prepubescent penises that lacked pubic hair.” The second affidavit did not attach or expressly incorporate the first affidavit.
- The second warrant was issued; the search uncovered videos of sexual abuse. State and federal charges followed; the district court denied suppression motions, Sheehan entered a conditional guilty plea, and he appealed.
Issues
| Issue | Plaintiff's Argument (Sheehan) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Lawfulness of seizing phone from wife during execution of first warrant | Seizure exceeded scope; phone taken from wife whom the warrant did not authorize to search; standing objection | Phone was visible and subject to seizure under warrant; no search of wife occurred | Seizure upheld: it was a seizure of property visible and authorized by the first warrant; no Fourth Amendment violation on that ground |
| Probable cause for second warrant to search devices for child pornography | Description in second affidavit was conclusory (mere child nudity) and insufficient under Brunette; magistrate lacked basis to find images "lascivious/lewd" | Description was adequate; facts of arrest + trooper’s observation supported fair probability that devices contained child pornography | Probable cause lacking: affidavit’s description was too cursory to establish lewdness; Brunette controls; warrant invalid |
| Whether first affidavit/warrant was incorporated into the second application | Second affidavit did not expressly incorporate the first; magistrate could not rely on it | Implicit incorporation: docket references, items seized under first warrant, and successive docket numbers meant the magistrate had access to earlier facts | Not incorporated: mere reference by docket number and context insufficient; court confines review to four corners of the second affidavit |
| Applicability of good-faith exception to preserve evidence from invalid second warrant | Affidavit so deficient and officer withheld available facts; reliance was objectively unreasonable | Officers reasonably relied on a magistrate-issued warrant and could have believed incorporation occurred; Herring/Davis limit exclusion | Good-faith exception inapplicable: affidavit "so lacking in indicia of probable cause" and officer’s choice to omit available information made reliance unreasonable; suppression required |
Key Cases Cited
- United States v. Brunette, 256 F.3d 14 (1st Cir. 2001) (conclusory statutory descriptions of images are insufficient to establish probable cause for child pornography)
- Illinois v. Gates, 462 U.S. 213 (1983) (totality-of-the-circumstances standard for probable cause)
- United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to the exclusionary rule)
- Herring v. United States, 555 U.S. 135 (2009) (limits exclusionary rule where police errors are negligent and deterrence is minimal)
- Davis v. United States, 564 U.S. 229 (2011) (exclusionary rule’s sole purpose is deterrence; narrows application)
- United States v. Cordero-Rosario, 786 F.3d 64 (1st Cir. 2015) (allegation of sexual assault alone does not justify searching devices for child pornography without facts connecting the conduct to the devices)
- United States v. Chiu, 36 F.4th 294 (1st Cir. 2022) (examples where affidavits contained sufficient particularized facts to establish probable cause for child-pornography searches)
- United States v. Monell, 801 F.3d 34 (1st Cir. 2015) (good-faith exception may apply where a valid alternative basis for a search existed)
- United States v. Jacobsen, 466 U.S. 109 (1984) (distinguishing seizure from search; defining seizure as meaningful interference with possessory interests)