as illicit drugs and currency derived from the sale of illicit drugs,” and 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 suggestions relating to the behavior of drug traffickers may well be true,[1] 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.[2]
- ↑ 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).
- ↑ 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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