Fourth Circuit Dissects Validity of ‘Overly Broad’ Phone Search Warrant

RICHMOND (CN) – The Fourth Circuit on Wednesday was asked to decide whether police violated the rights of a man who later pleaded guilty to a child pornography charge by using an overly broad warrant to search his cellphone and house.

John Burton entered his plea in 2011. As recounted in court filings, Burton had followed a woman through a Farm Fresh grocery store in Norfolk, Virginia, and she later accused him of taking nonconsensual photos of her as she shopped.

However, by the time she reported the incident to store employees and police were summoned to the scene, Burton had left.

Police tracked him down and asked him to return to the store for questioning. He refused, citing family business. However, he did show up at the local police station two days later to be question, and brought his cellphones with him.

While questioning only lasted 30 minutes, police took both of Burton’s phones when he arrived and told him they would be keeping them. They did not have a warrant at this time, nor did Burton push back when they took the phones.

Police did not obtain a warrant to search the phones until two days later. The specifics of the warrant allowed search for “evidence related to the offense of ‘unlawful filming or photographing of another’” and allowed them to search any and every part of the phones.

There they found photos of women that Burton said were of his girlfriends. But the police thought otherwise, nothing they were upskirt photos which appeared to be taken at different locations. He was then charged with a state offence arising from the Farm Fresh incident.

Weeks later they obtained a warrant to search Burton’s house for “any computer, computer related storage devices to include flash drives, memory devices, external hard drives, cameras, cell phones, laptops” among other items.

Over 400 items were seized in that search and that’s where the child pornography was found.

Burton later confessed to the upskirt photo of the original woman, pleaded guilty to the child porn charges and was sentenced.

During his appeal of the case on Thursday most of the questions posed by the three-judge panel focused on the legality of the police’s search, the timeline between interviews and seeking warrants, and the broad nature of the search warrant which lead to his plea.

“[The police] took the effort to secure his phone [in the first interview] but they didn’t go to his house,” said Patrick Bryant who argued on behalf of Burton. “There was nothing stopping them from getting [the warrant] then … there’s no precedent for taking a phone without a warrant. They didn’t have to act, but they can’t delay [the warrant request] like that”

But the judges appeared, at least at first, unsympathetic to this argument.

U.S. Circuit Judge J. Harvie Wilkinson criticized Bryant’s delay theory and said it actually reflected the police officer’s intent to do his due diligence, acting in good faith.

“If you want police to do a good job, it takes time, you can’t just order a warrant like that, it’s not fast food,” he said.

Wilkinson argued on behalf of the officers for the duration of the hearing, specifically for the scope of the warrant to search the phone.

“The defendant is taking advantage of modern technology to violate privacy of the most egregious sort,” he said, noting had the police not taken the phones and been allowed to search if they had been sent anywhere else he could have deleted them. “He’s using technology to facilitate [the violation], then he says law enforcement can’t be cognizant of that.”

“[He’s demanding] privacy for me but not for thee!” he said.

But the other judges on the panel, while often expressing disgust for the act the man plead guilty of, did have some problems with the extent of the warrants.

“The warrant for the phones was really broad. The [warrant for the residence] was even broader still. Is it supposed to be saved by the good faith [of the officer]?”  asked U.S. Circuit Judge Allyson Duncan, noting the warrant could be seen as problematic.

“Advances of tech have not lead to narrowing searches,” said Richard Timm who argued on behalf of the government in the case. He said the officers were worried that if the phone was left in Burton’s hands any longer he could have deleted the images or worse, shared the photos online further harming the victims.

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