United States Court of Appeals

for the Fifth Circuit

No. 19-10842

United States of America, 

Plaintiff—Appellee,

versus

Brian Matthew Morton, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CR-17-1

Before Jolly, Southwick, and Wilson, Circuit Judges.

E. Grady Jolly, Circuit Judge:

In this appeal, we are asked to determine whether the good faith 

exception to the Fourth Amendment’s exclusionary rule allows officers to 

search the photographs on a defendant’s cellphones for evidence of drug 

possession, when the affidavits supporting the search warrants were based 

only on evidence of personal drug possession and an officer’s generalized 

allegations about the behavior of drug traffickers—not drug users. We hold

that the officers’ affidavits do not provide probable cause to search the

photographs stored on the defendant’s cellphones; and further, we hold that

the good faith exception does not apply because the officers’ reliance on the 

United States Court of Appeals

Fifth Circuit

FILED

January 5, 2021

Lyle W. Cayce

Clerk

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No. 19-10842

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defective warrants was objectively unreasonable. And while respecting the 

“great deference” that the presiding judge is owed, we further hold that he

did not have a substantial basis for his probable cause determination with 

regard to the photographs. We thus conclude that the digital images found 

on Morton’s cellphones are inadmissible, and his conviction is therefore

VACATED. Accordingly, the case is REMANDED for further 

proceedings not inconsistent with this opinion.

I.

Brian Matthew Morton was stopped for speeding near Palo Pinto,

Texas. After the officers smelled marijuana, he gave consent to search his 

van. Officers found sixteen ecstasy pills, one small bag of marijuana, and a 

glass pipe. When, however, they discovered children’s school supplies, a 

lollipop, 14 sex toys, and 100 pairs of women’s underwear in the vehicle, they 

became more concerned that Morton might be a pedophile. After arresting 

Morton for drug possession, one of the officers, Texas Department of Public 

Safety (DPS) Trooper Burt Blue, applied for warrants to search Morton’s 

three cellphones that were found in the van. Trooper Blue’s affidavits1 for 

the search warrants mentioned no concerns about child exploitation; instead, 

the warrants purported to seek more evidence of Morton’s criminal drug 

activity based on Trooper Blue’s training and experience—fourteen years in 

1 The affidavits and warrants were identical to each other except for naming 

different cellphones to be searched. The paragraph of the affidavits describing the objects 

of the search reads:

It is the belief of affiant that suspected party was in possession of and is

concealing in [the cellphones] . . . [e]vidence of the offense of Possession

of [ecstasy], possession of marijuana and other criminal activity; to wit 

telephone numbers, address books; call logs, contacts, recently called 

numbers, recently received calls; recently missed calls; text messages 

(both SMS messages and MMS messages); photographs, digital images, or

multimedia files in furtherance of narcotics trafficking or possession.

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law enforcement and eight years as a “DRE-Drug Recognition Expert”—as 

well as the drugs found in Morton’s possession and his admission that the 

drugs were in fact marijuana and ecstasy.

Relying on these affidavits, a judge issued warrants to search 

Morton’s phones. While searching the phones’ photographs, Trooper Blue 

and another officer came across sexually explicit images of children. The 

officers then sought and received another set of warrants to further search 

the phones for child pornography, ultimately finding 19,270 images of 

sexually exploited minors. The government then indicted Morton for a 

violation of 18 U.S.C. § 2252(a)(2) for the child pornography found on his 

three cellphones. The subject of drugs had vaporized.

In pretrial proceedings, Morton moved to suppress this pornographic 

evidence. He argued that the affidavits in support of the first set of warrants

failed to establish probable cause to search for his additional criminal drug 

activity. The government responded by stating that the warrants were 

supported by probable cause and, if not, then the good faith exception to the 

exclusionary rule—first announced by the Supreme Court in United States v. 

Leon, 468 U.S. 897 (1984)—should apply. The district court ruled in favor 

of the government, and Morton later pled guilty to the child pornography 

charge while reserving his right to appeal the district court’s suppression 

decision. He was sentenced to nine years in prison, and this appeal of the 

suppression ruling followed.

II.

On appeal, when examining a district court’s ruling on a motion to 

suppress, we review questions of law de novo and accept factual findings 

unless they are clearly erroneous or influenced by an incorrect view of the 

law. United States v. Gentry, 941 F.3d 767, 779 (5th Cir. 2019); United States 

v. Fulton, 928 F.3d 429, 434 (5th Cir. 2019). We view the evidence in the 

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light most favorable to the prevailing party. United States v. Ganzer, 922 F.3d 

579, 583 (5th Cir. 2019). In reviewing a district court’s denial of a 

suppression motion for evidence obtained pursuant to a search warrant, our 

precedent usually applies a two-step test. United States v. Allen, 625 F.3d 

830, 835 (5th Cir. 2010). First, we decide whether the good faith exception

should apply. Id. If the good faith exception applies, then no further inquiry 

is required. Id. If the good faith exception does not apply, we proceed to a 

second step of analysis, in which we review whether the issuing judge had a 

substantial basis for determining that probable cause existed. Id.

The good faith exception to the suppression of evidence obtained in 

violation of the Fourth Amendment arises when an officer’s reliance on a 

defective search warrant is “objectively reasonable.” United States v. Sibley, 

448 F.3d 754, 757 (5th Cir. 2006). In such a case, the evidence obtained from 

the search “will not be excluded.” Id. This court has decided that the good 

faith exception applies to most searches undertaken pursuant to a warrant 

unless one of the four situations enumerated in Leon removes the warrant 

from the exception’s protection. Leon, 468 U.S. at 923; see Franks v. 

Delaware, 438 U.S. 154, 171 (1978). Only one of these “exceptions to the 

good faith exception” is relevant here: Morton alleges that the warrant “so 

lack[ed] indicia of probable cause” that the officers’ reliance on it was 

“entirely unreasonable.” Leon, 468 U.S. at 923.

To determine if there were indicia of probable cause, the reviewing 

court will usually be required to look at the affidavit supporting the warrant, 

but, even so, all of the circumstances surrounding the warrant’s issuance may 

be considered. United States v. Payne, 341 F.3d 393, 400 (5th Cir. 2003); 

United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994). Affidavits must raise 

a “fair probability” or a “substantial chance” that criminal evidence will be 

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found in the place to be searched for there to be probable cause. Safford 

Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371 (2009) (cleaned up).

Here, as suggested by this court’s precedent, we turn to Trooper 

Blue’s affidavits supporting the search warrants. The affidavits seek 

approval to search Morton’s contacts, call logs, text messages, and 

photographs for evidence of his drug possession crimes. As the government 

properly conceded at oral argument,2 separate probable cause is required to 

search each of the categories of information found on the cellphones. 

Although “[t]reating a cell phone as a container . . . is a bit strained,” the 

Supreme Court has explained that cellphones do “collect[] in one place many 

distinct types of information.” Riley v. California, 573 U.S. 373, 394, 397

(2014). And the Court’s opinion in Riley went to great lengths to explain the

range of possible types of information contained on cellphones.3

Riley made clear that these distinct types of information, often stored 

in different components of the phone, should be analyzed separately. This

requirement isimposed because “a cell phone’s capacity allows even just one 

2 Oral Argument at 27:28, United States v. Morton, No. 19-10842, 

http://www.ca5.uscourts.gov/OralArgRecordings/19/19-10842_10-5-2020.mp3:

The Court: Do you say you’re entitled to everything inside that phone so 

long as you can look at anything inside the phone?

The Government: No, your Honor.

The Court: Or do you need probable cause for each individual sort of 

category of information that could be found there?

The Government: That’s correct.

3 See id. at 393 (emphasizing that the term “cellphone” is “misleading shorthand” 

because cellphones are in fact minicomputers that also can serve as “cameras, video 

players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, 

or newspapers”); id. at 394 (noting that “[e]ven the most basic phones” might hold 

photographs, messages, a calendar, a phone book, “and so on”); id. at 396 (describing all 

of the possible apps as a “range of tools for managing detailed information”).

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type of information to convey far more than previously possible.” Id. at 394. 

Just by looking at one category of information—for example, “a thousand 

photographs labeled with dates, locations, and descriptions” or “a record of 

all [a defendant’s] communications . . . as would routinely be kept on a 

phone”—“the sum of an individual’s private life can be reconstructed.”4 Id.

at 394–95. In short, Riley rejected the premise that permitting a search of all

content on a cellphone is “materially indistinguishable” from other types of 

searches. Id. at 393. Absent unusual circumstances, probable cause is 

required to search each category of content. Id. at 395 (stating that “certain 

types of data” on cellphones are “qualitatively different” from other types); 

id. at 400 (analyzing data from a phone’s call log feature separately); see also

Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (analyzing data from 

a phone’s cell tower location signals separately).

This distinction dovetails with the Fourth Amendment’s imperative 

that the “place to be searched” be “particularly describ[ed].” U.S. CONST.

amend. IV.; cf., e.g., United States v. Beaumont, 972 F.2d 553, 560 (5th Cir. 

1992) (“General warrants [which lack particularity] have long been abhorred 

in the jurisprudence of both England and the United States.”). Probable 

cause and particularity are concomitant because “—at least under some 

circumstances—the lack of a more specific description will make it apparent 

that there has not been a sufficient showing to the magistrate that the 

4 Moreover, the Supreme Court intimated in Riley that searching a phone may be 

akin to searching a defendant’s house—if not even more invasive. Id. at 396–97 (noting 

that a “cell phone search would typically expose to the government far more than the most 

exhaustive search of a house” because a phone “not only contains in digital form many 

sensitive records previously found in the home,” but it also “contains a broad array of 

private information never found in a home in any form”) (emphases added); id. at 403 

(comparing general searches of cellphones to the “general warrants and writs of assistance

. . . which allowed British officers to rummage through homes in an unrestrained search for 

evidence of criminal activity” against which the Founders fought) (emphasis added).

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described items are to be found in a particular place.”5 WAYNE R.

LAFAVE, 2 SEARCH & SEIZURE § 4.5 (6th ed. 2020).

Here, this observation means that the facts as alleged in Trooper 

Blue’s affidavits must raise a “fair probability” or a “substantial chance” 

that evidence relevant to Morton’s crime—that is, simple drug possession—

will be found in each place to be searched: his contacts, his call logs, his text 

messages, and his photographs. There must be a specific factual basis in the 

affidavit that connects each cellphone feature to be searched to the drug 

possession crimes with which Morton was initially charged.

III.

A.

The affidavits successfully establish probable cause to search 

Morton’s contacts, call logs, and text messages for evidence of drug 

possession. In attesting that probable cause exists, officers may rely on their 

experience, training, and all the facts available to them. Ornelas v. United 

States, 517 U.S. 690, 700 (1996); United States v. Escamilla, 852 F.3d 474, 481 

5 This requirement is especially important in the context of searches of digital 

devices that contain so much content. See, e.g., Adam M. Gershowitz, The Post-Riley Search 

Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 VAND. L. REV. 585, 

597–600 (2016); id. at 609 (noting that in drug cases, warrants frequently “authorize 

searches for photos and videos [on phones] . . . for which there is typically no probable 

cause”); Andrew D. Huynh, Note, What Comes After “Get A Warrant”: Balancing 

Particularity and Practicality in Mobile Device Search Warrants Post-Riley, 101 CORNELL L.

REV. 187, 190 (2015) (“The Court's lengthy discussion about the amount of personal 

information accessible on a modern mobile device suggests that a search warrant's 

particularity may be the next subject for scrutiny.”); William Clark, Protecting the Privacies 

of Digital Life: Riley v. California, the Fourth Amendment's Particularity Requirement, and 

Search Protocols for Cell Phone Search Warrants, 56 B.C. L. REV. 1981, 1984 (2015) (“As 

the U.S. Supreme Court held in Riley, to allow the police unguided review of the entire 

contents of a cell phone when executing a search warrant would authorize the exact type of 

general warrants that the Fourth Amendment forbids.”).

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(5th Cir. 2017); Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988). Here, 

Trooper Blue relied on his fourteen years in law enforcement and eight years 

as a “DRE-Drug Recognition Expert” to assert that suspects’ call logs often 

show calls “arrang[ing] for the illicit receipt and delivery of controlled 

substances”; stored numbers identify “suppliers of illicit narcotics”; and 

text messages “may concern conversations” along these lines as well. Since 

this is true of drug possession suspects in general, and Morton had been 

found with drugs, Trooper Blue credibly alleges that there is a “fair 

probability” that these features of Morton’s phone would contain similar 

evidence of Morton’s drug possession charges.

These conclusions are supported by simple logic. To possess drugs, 

one must have purchased them; contacts, call records, and text messages 

could all easily harbor proof of this purchase. For example, text messages 

could show a conversation with a seller haggling over the drugs’ cost or

arranging a location to meet for the exchange. Similarly, Morton could have 

had his source of drugs listed in his contacts as “dealer” or some similar 

name, and recent calls with such a person could show a recent purchase. The 

affidavit makes all of these points. For this reason, we hold that there was 

probable cause to search Morton’s contacts, call records, and text messages 

for evidence relating to his illegal drug possession.

B.

But the affidavits also asserted probable cause to believe that the 

photographs on Morton’s phones contained evidence of other drug crimes, 

and on this claim, they fail the test of probable cause as related to the crime 

of possession. That is, they fall short of raising a “substantial chance” that 

the photographs on Morton’s phones would contain evidence pertinent to

his crime of simple drug possession. As we have said, officers are permitted 

to rely on training and experience when attesting that probable cause exists,

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but they must not turn a blind eye to detailsthat do notsupport probable cause

for the particular crime. Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)

(explaining that officers may not “disregard facts tending to dissipate 

probable cause”).

Here, Trooper Blue supplied two facts to provide probable cause to 

search the images on Morton’s phones. First, Morton was found with less 

than two ounces of marijuana, a pipe, and sixteen pills that Morton stated 

were ecstasy. Second, based on Trooper Blue’s training and experience, 

“criminals often take photographs of co-conspirators as well as illicit drugs 

and currency derived from the sale of illicit drugs.” This background led 

Trooper Blue to assert that “photograph images stored in the cellular 

telephone may identify other co-conspirators and show images of illicit drugs and 

currency derived from the sale of illicit drugs.” These photographs would, in 

turn, be evidence of “other criminal activity . . . in furtherance of narcotics 

trafficking” and Morton’s drug possession crimes. The search warrant is 

thus expanded to seek information of an alleged narcotics trafficking 

conspiracy based solely on Morton’s arrest for, and evidence of, simple drug 

possession.6

The syllogism that Trooper Blue offers to gain access to Morton’s 

photographs does not provide adequate grounds for the extensive search. In 

6 In full, the sole paragraph in each affidavit purporting to provide probable cause 

to search Morton’s photographs reads:

Affiant knows through training and experience that photographic images 

taken on cellular telephones can be stored in the telephones [sic] memory 

and retained for future viewing. Affiant also knows through training and 

experience that criminals often take photographs of co-conspirators as well as 

illicit drugs and currency derived from the sale of illicit drugs. Affiant believes 

that photograph images stored in the cellular telephone may identify other 

co-conspirators and show images of illicit drugs and currency derived from the 

sale of illicit drugs.

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short, the syllogism is (1) Morton was found with personal-use quantities of

drugs; and (2) drug dealers often take photos of drugs, cash, and coconspirators; it therefore follows that (3) the photographs on Morton’s 

phones will provide evidence of Morton’s relationship to drug trafficking. 

The fallacy of this syllogism is that it relies on a premise that cannot be 

established, namely that Morton was dealing drugs. And here, Trooper Blue 

disregarded key facts that show that the evidence did not support probable 

cause that Morton was a drug dealer.

To begin, the quantity of drugs Morton possessed can best be 

described as personal-use: a single small bag of marijuana and a few ecstasy 

pills. Further, Morton did not have scales, weapons, or individual plastic 

bags that are usually associated with those who sell drugs. It is also significant

that the officers arrested Morton for possession of marijuana and ecstasy but 

not distribution of these drugs. Compare TEX. HEALTH & SAFETY CODE

§§ 481.121, 481.116 with id. §§ 481.120, 481.113.7

 In sum, indications of drug 

trafficking were lacking: no significant amount of drugs; paraphernalia for 

personal use, not sale; and no large amounts of cash. Or precisely: there was 

no evidence supporting drug trafficking.

Nevertheless, Trooper Blue relied on his knowledge of the behavior 

of drug traffickers to support a search of Morton’s photos. Again, we 

emphasize that the only times Morton’s photographs are mentioned in the 

affidavits are in connection with statements about the behavior of drug 

traffickers: that “criminals often take photographs of co-conspirators as well 

7 Cf. Moreno v. State, 195 S.W.3d 321, 325–26 (Tex. App. 2006) (collecting cases 

showing that proving “delivery” under Texas law requires the consideration of factors 

including the quantity of contraband possessed, the presence and type of drug 

paraphernalia, and whether the defendant possessed a large amount of cash);see also United 

States v. Le, 512 F.3d 128, 137 (5th Cir. 2007) (Texas statutory references to “delivery” are 

equivalent to “possession with intent to distribute”).

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as illicit drugs and currency derived from the sale of illicit drugs,” and that 

“photograph images stored in the cellular telephone may identify other coconspirators and show images of illicit drugs and currency derived from the 

sale of illicit drugs.” These suggestions relating to the behavior of drug 

traffickers may well be true,8 but Trooper Blue cannot rely on these assertions 

to search the photo contents of the cellphones of a suspect charged with 

simple possession. Nor was Trooper Blue permitted, in his affidavit, to 

ignore the evidence that negated probable cause as to trafficking.

Since it seems that no evidence supported probable cause to believe 

that Morton was dealing in drugs, the affidavit leaves us with only the 

allegations that (1) Morton was found with drugs so (2) it therefore follows 

that the photographs on Morton’s phones will provide evidence of Morton’s

crime of drug possession. With only this bare factual support that Morton 

possessed drugs, the affidavits contain nothing to link Morton’s marijuana 

and ecstasy with the photographs on his phones. The affidavits thus do not 

create a “fair probability” or a “substantial chance” that evidence of the 

crime of drug possession will be found in the photographs on Morton’s 

cellphones. Therefore, under these facts and based on the specific language 

in these affidavits, we hold that probable cause was lacking to search 

Morton’s photographs for proof of his illegal drug possession.9

8 See, e.g., United States v. Luna, 797 F. App’x 158, 160 (5th Cir. 2020) (drug dealers 

sending photographs of guns, drugs, and cash to each other).

9 This result is suggested by both our own caselaw as well as the law of other 

circuits. As Morton argued at oral argument (and the government could not cite a case to 

the contrary), our precedent is void of any cases in which personal-use quantities of drugs 

by themselves provide probable cause to search the photos on a defendant’s phone. Oral 

Argument at 41:43, United States v. Morton, No. 19-10842, 

http://www.ca5.uscourts.gov/OralArgRecordings/19/19-10842_10-5-2020.mp3 (“It still 

doesn’t get you to the images. There’s not a single case, based just on training and 

experience, plus cellphones, plus user-quantity drugs, that you get to get to everything in 

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C.

Having demonstrated that the warrants to search the photographs 

stored on Morton’s cellphones were not supported by probable cause, we 

next turn to the question of whether the evidence produced by the search

may nevertheless be admitted based upon the good faith exception. To 

resolve this question, we ask whether the officers’ good faith reliance on 

these defective warrants was objectively reasonable. The district court’s 

decision on the objective reasonableness of an officer’s reliance is a question 

of law that is reviewed de novo. United States v. Jarman, 847 F.3d 259, 264 

the phone.”). And a Tenth Circuit decision similarly addresses the issues here: after 

arresting a defendant for drug crimes, officers applied for and received a warrant to search 

his computers for files containing “names, telephone numbers, ledger receipts, addresses, 

and other documentary evidence” of drug offenses. United States v. Carey, 172 F.3d 1268, 

1270 (10th Cir. 1999). No drug-related evidence was found, but the officer undertaking the 

search also viewed the defendant’s photographs and found child pornography. Id. at 1271. 

The Tenth Circuit reversed the district court, holding that these photographs should be 

suppressed. Id. at 1276.

In rejecting the government’s argument that the situation was similar to “an officer 

having a warrant to search a file cabinet containing many drawers,” the panel held that this 

was “not a case in which the officers had to open each file drawer before discovering its 

contents.” Id. at 1274–75. Instead, the government “opened a drawer” marked 

“photographs” for which they did not have probable cause. Id. Subsequent Tenth Circuit 

cases have upheld the approach that Carey established, proscribing those searches with no 

“limiting principle” while sanctioning those that “affirmatively limit the search to 

evidence of . . . specific types of material” in the digital setting. United States v. Russian, 

848 F.3d 1239, 1245 (10th Cir. 2017); United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 

2005). Other circuits have reached similar results. United States v. Rosa, 626 F.3d 56, 62 

(2d Cir. 2010) (concluding that a warrant to search a digital device “failed to describe with 

particularity the evidence sought and, more specifically, to link that evidence to the 

criminal activity supported by probable cause,” resulting in an impermissible “general 

warrant”); United States v. Pitts, 173 F.3d 677 (8th Cir. 1999) (noting in an analogous 

context outside the realm of digital searches that “when a warrant lists several locations to 

be searched, a court can suppress evidence recovered at a location in the warrant for which 

police lacked probable cause but admit evidence recovered at locations for which probable 

cause was established”).

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(5th Cir. 2017). In reviewing whether an officer’s reliance is reasonable 

under the good faith exception, we ask “whether a reasonably well-trained 

officer would have known that the search was illegal” despite the 

magistrate’s approval. United States v. Gant, 759 F.2d 484, 487–88 (5th Cir.

1985).

The Supreme Court has observed: “[M]any situations which confront 

officers in the course of executing their duties are more or less ambiguous,

[and]room must be allowed for some mistakes on their part. But the mistakes 

must be those of reasonable men, acting on facts leading sensibly to their 

conclusions of probability.” Brinegar v. United States, 338 U.S. 160, 176 

(1949). And further, “[m]ere affirmance of belief or suspicion is not 

enough.” Nathanson v. United States, 290 U.S. 41, 47 (1933). The facts here

lead to the sensible conclusion that Morton was a consumer of drugs; the 

facts do not lead to a sensible conclusion that Morton was a drug dealer. 

Under these facts, reasonably well-trained officers would have been aware

that searching the digital images on Morton’s phone—allegedly for drug 

trafficking-related evidence—was unsupported by probable cause, despite 

the magistrate’s approval. Consequently, the search here does not receive 

the protection of the good faith exception to the exclusionary rule.

IV.

However, the good faith exception, applicable to the officers, does not 

end our analysis. As we have said, if the good faith exception does not save 

the search, we move to a second step: whether the magistrate who issued the 

warrant had a “substantial basis” for determining that probable cause to 

search the cellphones existed. United States v. Allen, 625 F.3d 830, 835 (5th 

Cir. 2010). While the good faith analysis focuses on what an objectively 

reasonable police officer would have known to be permissible, this second 

step focuses on the magistrate’s decision. The magistrate is permitted to 

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draw reasonable inferences from the material he receives, and his 

determination of probable cause is entitled to “great deference” by the 

reviewing court in all “doubtful or marginal cases.” United States v. May, 

819 F.2d 531, 535 (5th Cir. 1987); see 2 WAYNE R. LAFAVE ET AL.,

CRIMINAL PROCEDURE § 3.1(c) & n.78 (4th ed. 2019). At the same time, 

“a reviewing court may properly conclude that, notwithstanding the 

deference that magistrates deserve, the warrant was invalid because the 

magistrate’s probable-cause determination reflected an improper analysis.” 

United States v. Leon, 468 U.S. 897, 915 (1984).

Here, even giving the magistrate’s determination the deference due, 

we hold that the magistrate did not have a substantial basis for determining 

that probable cause existed to extend the search to the photographs on the 

cellphones. Even if the warrants provided probable cause to search some of 

the phones’ “drawers” or “file cabinets,” the photographs “file cabinet” 

could not be searched because the information in the officer’s affidavits

supporting a search of the cellphones only related to drug trafficking, not 

simple possession of drugs. There was thus no substantial basis for the 

magistrate’s conclusion that probable cause existed to search Morton’s

photographs, and the search is not saved by the magistrate’s authority. The 

search was unconstitutional, not subject to any exceptions, and the evidence 

must be suppressed as inadmissible.

V.

Today, we have held that a reasonably well-trained officer would have 

known that probable cause was lacking to search the photographs stored on 

the defendant’s cellphones for evidence related to drug possession, which 

was the only crime supporting a search. Moreover, we have held that any 

additional assertions in the affidavits were too minimal and generalized to 

provide probable cause for the magistrate to authorize the search of the 

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photographs. Because the officers’ search of the stored photographs

pursuant to the first warrants was impermissible, obviously the use of that 

information—which was the evidence asserted to secure the second set of

warrants—tainted the evidence obtained as a result of that second search, 

making it the unconstitutional “fruit of the poisonous tree.” See, e.g., United 

States v. Martinez, 486 F.3d 855, 864 (5th Cir. 2007). Therefore, the 

evidence obtained as a result of the second set of warrants is inadmissible.

As we have earlier noted, Morton pled guilty while reserving the right 

to appeal the district court’s order on the motion to suppress. This 

conditional guilty plea, under Federal Rule of Criminal Procedure 11(a)(2), 

allows a defendant to “reserv[e] in writing the right to have an appellate court 

review an adverse determination of a specific pretrial motion.” FED. R.

CRIM. P. 11(a)(2). Furthermore, “a defendant who prevails on appeal may 

then withdraw [his] plea.” Id. Therefore, as to the photographs discovered 

in the first search of Morton’s cellphones and the subsequently discovered 

evidence from the second searches, we REVERSE the order of the district 

court denying Morton’s motion to suppress, VACATE Morton’s

conviction and sentence so that he may withdraw his plea, and REMAND

this case to the district court for further proceedings not inconsistent with 

this opinion.

REVERSED, VACATED, and REMANDED.

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