Page 1 Memorandum in support of Motion to Suppress

Donald L. Scales

217 Laurel Street

Medford, OR 97501

donscales05@msn.com

(541) 772-2363

Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

ERNEST LUTHER TAYLOR,

Defendant.

CR No. 15-CR-00173-AA

MEMORANDUM IN SUPPORT OF 

MOTION TO SUPPRESS

FACTS

On February 11, 2014, in Medford, Jackson County, Oregon, Detective Jennifer 

Newell of the Medford Police Department authored an affidavit for search warrant 

regarding allegations of illegal drug manufacture and delivery against Mr. Taylor. In the 

request for the search warrant, Detective Newell included a list of items law enforcement 

wanted to seize. Included in the list was an entry for cell phones. A circuit court judge 

signed the search warrant. On February 18, 2014, officers executed the search warrant at 

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Mr. Taylor’s residence. Multiple evidentiary items were seized and searched, including a 

cell phone. Some months later, the cell phone was forensically evaluated. The forensic 

evaluation uncovered digital imagery that is the subject of the current charges. In August 

2014, two more search warrants were issued based upon the evidence unlawfully seized 

from the first cell phone.

ISSUES

I. THE AFFIDAVIT FOR SEARCH WARRANT DID NOT SUPPORT PROBABLE 

CAUSE THAT MR. TAYLOR’S CELL PHONE WOULD CONTAIN EVIDENCE OF 

ANY CRIME.

II. NO REASONABLE OFFICER COULD HAVE BELIEVED THE WARRANT TO 

BE VALID AS TO THE CELL PHONE; THE GOOD FAITH EXCEPTION DOES NOT 

APPLY.

III. EVEN IF THE AFFIDAVIT SUPPORTED A FINDING OF PROBABLE CAUSE, 

A SEPARATE SEARCH WARRANT WAS REQUIRED BEFORE LOOKING AT THE 

CONTENTS OF THE CELL PHONE.

ARGUMENT

I. THE AFFIDAVIT FOR SEARCH WARRANT DID NOT SUPPORT PROBABLE 

CAUSE THAT MR. TAYLOR’S CELL PHONE WOULD CONTAIN EVIDENCE OF

ANY CRIME.

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To satisfy the demands of the Warrant Clause of Fourth Amendment, a warrant 

must comply with two related but distinct rules. First, it must describe the place to be 

searched or things to be seized with sufficient particularity, taking account of the 

circumstances of the case and the types of items involved. Second, it must be no broader 

than the probable cause on which it is based. The particularity rule and the probable cause 

rule serve a common purpose: to protect privacy by prohibiting a general, exploratory 

rummaging in a person’s belongings. The Tenth Circuit noted: 

“The essential inquiry when faced with challenges 

under the Fourth Amendment is whether the search or seizure 

was reasonable – reasonableness is analyzed in light of what 

was reasonable at the time of the Fourth Amendment’s 

adoption...It is axiomatic that the Fourth Amendment was 

adopted as a direct response to the evils of general warrants in 

England and the writs of assistance in the Colonies.” 

O’Rourke v. City of Norman, 875 F.2d 1465, 1472 (10th Cir. 

1989).

The Ninth Circuit has stated that probable cause under the Fourth Amendment 

requires a “fair probability that contraband or evidence of a crime will be found in a 

particular place based on the totality of the circumstances.” Dawson v. City of Seattle, 435 

F.3d 1054, 1062 (9th Cir. 2006) (quoting Illinois v. Gates, 462 US 213, 238 (1983)). 

In the case at bar, the affiant of the affidavit for search warrant went to great lengths 

to explain facts that supported the allegations of illegal drug operations. (See Affidavit 

for Search Warrant and Search Warrant, authored by Detective Newell of the Medford 

Police Department, attached as Exhibit A). Nowhere in her affidavit does she mention a 

single fact that relates defendant’s particular conduct or circumstances regarding the cell 

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phone. Notably, Officer Newell never even included any information regarding her 

training and experience related to alleged drug dealing and its relationship to cell phone 

contents. In this case, the affidavit for search warrant is entirely silent as to facts about 

cell phones. Aside from including “cell phones” as a generic entry in a list of things to 

seize, the only other mention of cell phones in the affidavit is found in a paragraph on page 

18-19 that states as follows:

“Conducting a search of digital devices such as phones, 

documenting the searches and making evidentiary and 

discovery copies can take over 5 business days. Complex 

systems or recovery tasks can require an excess of 45 business 

days. Due to the backlog of digital evidence pending 

examination and the limited number of trained forensic 

examiners, it is possible to take up to 12 months or more before 

the evidence will be fully processed.” Affidavit, p. 18-19.

 

This paragraph is a boilerplate paragraph explaining why a digital search may take 

longer than 5 days. The same boilerplate paragraph is in the actual warrant. It does not 

accomplish identifying defendant’s particular behavior as it relates to the cell phone; it 

does not support a “fair probability that contraband or evidence of a crime will be found in 

a particular place based on the totality of the circumstances.” Dawson, supra. 

Reading the affidavit in a commonsense and realistic fashion, there is no possible 

way to draw reasonable inferences regarding cell phones where the affiant never even 

mentioned them, or how they related to the defendant’s specific alleged drug-related 

conduct. Thus, the affidavit for search warrant in this case fails to establish probable 

cause specific to the phone.

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II. NO REASONABLE OFFICER COULD HAVE BELIEVED THE WARRANT TO 

BE VALID AS TO THE CELL PHONE; THE GOOD FAITH EXCEPTION DOES NOT 

APPLY.

Suppression of evidence seized pursuant to a warrant unsupported by probable 

cause is not appropriate if the government relied on the warrant in good faith. United 

States v. Leon, 468 US 897, 923 (1984). However, suppression remains appropriate when 

a warrant is based on an affidavit “so lacking in indicia of probable cause as to render 

official belief in its existence entirely unreasonable.” Brown v. Illinois, 422 US 590, 611 

(1975). As the Supreme Court recently explained, “the threshold for establishing this 

exception is a high one” because “in the ordinary case, an officer cannot be expected to 

question the magistrate’s probable cause determination.” Messerschmidt v. Millender, 132 

S.Ct. 1235, 1345 (2012) (quoting Leon, 468 US at 921). But if the affidavit fails to 

“establish at least a colorable argument for probable cause,” United States v. Luong, 470 

F.3d 898, 903 (9th Cir. 2006), it fits within the “narrow exception” to Leon’s good faith 

reliance rule.

Defense asserts that no reasonable officer could have believed the warrant to be 

valid as to cell phones. The affidavit does not provide any plausible connection between 

Mr. Taylor’s alleged drug dealing activities and a cell phone. That affiant provided no 

information at all regarding drug activity and its relation to cell phones. Thus, the 

affidavit fails to establish at least a colorable argument for probable cause and fits squarely 

within the narrow exception to Leon. 

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III. EVEN IF THE AFFIDAVIT SUPPORTED A FINDING OF PROBABLE CAUSE, 

A SEPARATE SEARCH WARRANT WAS REQUIRED BEFORE LOOKING AT THE 

CONTENTS OF THE CELL PHONE.

Assuming for the sake of argument that probable cause did exist in the affidavit for 

search warrant, the warrant only authorized a seizure of cell phones; it did not authorize a 

separate and distinct search of cell phones. If the court finds that the seizure of cell phones 

was authorized, a separate warrant authorizing a search of the cell phone contents was 

required before the government searched the cell phone. See Riley v. California, 134 S.Ct. 

2473, 2480 (2014) (discussing the interrelated privacy consequences of searching a 

person’s cell phone).

Although Riley was a case about a search incident to arrest, the general principles 

apply. First, in Riley the officers lawfully seized a cell phone incident to arrest. In Mr. 

Taylor’s case, if the warrant is found to be supported by probable cause, the phone was 

lawfully seized.

In Riley, without first obtaining consent or a search warrant, the government 

searched the contents of the phone and discovered evidence of apparent gang membership. 

That information led them to charge Riley in connection with a shooting that had occurred 

a few weeks earlier. The government also sought a sentence enhancement due to his 

alleged gang membership. Riley moved to suppress the evidence but was denied and 

ultimately convicted. 

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In the case at bar, like in Riley, the government searched the contents of the cell 

phone without first seeking either consent or a warrant specifying that a search of the cell 

phone’s contents was permissible.

In Riley, the Court declined to extend the holding in United States v. Robinson, 414 

US 218 (1973), (that a custodial arrest of a suspect based on probable cause is a reasonable 

intrusion under the Fourth Amendment so a search of the arrestee’s person needed no 

further justification) to Riley. It declined in large part due to the technological advances 

in smart phones that were not conceivable when Robinson was decided. In explaining, the 

court discussed the privacy concerns related to today’s smart cell phones: 

“First, a cell phone collects in one place many distinct types of 

information that reveal much more in combination than any 

isolated record. Second, the phone’s capacity allows even 

just one type of information to convey far more than 

previously possible. Third, data on the phone can date back 

for years.” Riley, 134 S. Ct. at 2480. 

The Court stated that the term “cell phone” is misleading because smart phones are 

essentially “minicomputers that also happen to have the capacity to be used as a 

telephone.” Riley, 134 S.Ct. at 2488. Further, “the sum of an individual’s private life can 

be reconstructed through a thousand photographs labeled with dates, locations, and 

descriptions.” Riley, 134 S.Ct. at 2489.

The Supreme Court’s cases 

“have recognized that the Fourth Amendment was the 

founding generation’s response to the reviled ‘general 

warrants’ and ‘writs of assistance’ of the colonial era, which 

allowed British officers to rummage through homes in an 

unrestrained search for evidence of criminal activity. 

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Opposition to such searches was in fact one of the driving 

forces behind the Revolution itself.” Riley, 134 S.Ct. at 2494.

The Court continued on to say that it recognized that the Riley decision will have an 

impact on the ability of the government to combat crime, but stated that “[p]rivacy comes 

at a cost.” Riley, 134 S.Ct. at 2492. The Court in Riley held the lawfully seized cell 

phone (by search incident to arrest) was unlawfully searched without a warrant; the 

conviction was overturned.

In the case at bar, even if this Court finds there was probable cause to support the 

seizure of the cell phone, the subsequent search of the cell phone was unreasonable under 

the Fourth Amendment. The Supreme Court provided clear guidance where searches of 

the contents of lawfully seized cell phones was concerned: “Get a warrant.” Riley, 134 

S.Ct. at 2494.

CONCLUSION

The affidavit for search warrant authored by Detective Newell in this case is devoid 

of a single assertion that evidence of drug transactions would be found in any cell phone 

possessed by Mr. Taylor. Leon’s good faith exception does not apply. Further, even if 

the Court holds the warrant was supported by probable cause, it only authorized a seizure. 

The subsequent search required a new search warrant. The evidence obtained from the cell 

phone search, and any and all derivative evidence subsequently obtained in the two August 

2014 search warrants issued based on the files found in the cell phone should be suppressed 

as a matter of law under the Fourth Amendment. See Wong Sun v. United States, 371 U.S. 

471 (1963) (fruit of the poisonous tree doctrine).

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Page 9 Memorandum in support of Motion to Suppress

DATED this 12

th day of August, 2015.

/s/ Donald L. Scales 

Donald L. Scales

Attorney for Defendant

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