Fifth Circuit Opinion in United States v. Morton Threatens Cell Phone Users’ Privacy

August 30, 2022

Last week, the Fifth Circuit issued its decision in United States v. Morton, rolling back its earlier Fourth Amendment protections for cell phone users by giving the police almost unlimited ability to search through a person’s phone whenever the person is suspected of a crime.

There were two main issues in the case: whether police need specific evidence that a person used a phone to commit crimes in order to search it, and whether police can search a phone’s entire contents when they have probable cause to search some of it (e.g., searching through photos and web history as well as messages). A panel of Fifth Circuit judges originally ruled partially in favor of Mr. Morton, but the government successfully petitioned the entire Fifth Circuit to re-hear the case en banc.

EPIC, along with the ACLU and the EFF, submitted an amicus brief before the Court with two main arguments: Police cannot establish probable cause to search through a person’s phone by simply saying “criminals often use cell phones as the tools of their trade,” and probable cause to search some information on a cell phone does not establish probable cause to search through all of the information. But the en banc Court reversed the panel’s previous ruling, declaring that because the officers relied in good faith on a not-obviously-unconstitutional warrant, the evidence should not be suppressed (also known as the good-faith exception).

This is just one of many cases in which courts rely on the good-faith exception to avoid ruling on the merits of important Fourth Amendment cases. In a concurring opinion, Judge Higginson expressed concern that the rule would allow too many cell phones to be searched with very little evidence, and he provided some possible ways to make future searches more privacy-protective. In a dissenting opinion, Judge Graves criticized an overactive use of the good-faith exception. EPIC has long advocated for protections against overbroad digital searches and for robust enforcement of the Fourth Amendment.

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