United States v. Edward Bishop ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2019
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD BISHOP,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:17-cr-55 RLM-MGG — Robert L. Miller, Jr., Judge.
____________________
ARGUED NOVEMBER 14, 2018 — DECIDED DECEMBER 7, 2018
____________________
Before EASTERBROOK, SYKES, and SCUDDER, Circuit Judges.
EASTERBROOK, Circuit Judge. A drug deal went wrong. Af-
ter receiving a dose of pepper spray from his customer, Ed-
ward Bishop shot her in the arm. A jury convicted him of
discharging a firearm during a drug transaction, 18 U.S.C.
§924(c), and the judge sentenced him to 120 months’ impris-
onment. He presents one contention on appeal: that the war-
rant authorizing a search of his cell phone—a search that
turned up incriminating evidence—violated the Fourth
2 No. 18-2019
Amendment’s requirement that every warrant “particularly
describ[e] the place to be searched, and the persons or things
to be seized.”
This warrant described the “place to be searched” as the
cell phone Bishop carried during the ahempted sale, and it
described the things to be seized as:
any evidence (including all photos, videos, and/or any other dig-
ital files, including removable memory cards) of suspect identity,
motive, scheme/plan along with DNA evidence of the crime of
Criminal Recklessness with a deadly weapon which is hidden or
secreted [in the cellphone or] related to the offense of Dealing il-
legal drugs.
That is too general, Bishop asserts, because it authorized the
police to rummage through every application and file on the
phone and left to the officers’ judgment the decision which
files met the description. The district court found the war-
rant valid, however, and denied the motion to suppress.
Bishop is right about the facts. This warrant does permit
the police to look at every file on his phone and decide
which files satisfy the description. But he is wrong to think
that this makes a warrant too general. Criminals don’t adver-
tise where they keep evidence. A warrant authorizing a
search of a house for drugs permits the police to search eve-
rywhere in the house, because “everywhere” is where the
contraband may be hidden. United States v. Ross, 456 U.S.
798, 820–21 (1982); Steele v. United States, 267 U.S. 498, 503
(1925). And a warrant authorizing a search for documents
that will prove a crime may authorize a search of every doc-
ument the suspect has, because any of them might supply
evidence. To see this, it isn’t necessary to look beyond An-
dresen v. Maryland, 427 U.S. 463 (1976), in which the Court
No. 18-2019 3
considered a warrant that permihed a search of every docu-
ment in a lawyer’s files. Agents were authorized to search
for:
title notes, title abstracts, title rundowns; contracts of sale and/or
assignments from Raffaele Antonelli and Rocco Caniglia to
Mount Vernon Development Corporation and/or others; lien
payoff correspondence and lien pay-off memoranda to and from
lienholders and noteholders; correspondence and memoranda to
and from trustees of deeds of trust; lenders instructions for a
construction loan or construction and permanent loan; dis-
bursement sheets and disbursement memoranda; checks, check
stubs and ledger sheets indicating disbursement upon sehle-
ment; correspondence and memoranda concerning disburse-
ments upon sehlement; sehlement statements and sehlement
memoranda; fully or partially prepared deed of trust releases,
whether or not executed and whether or not recorded; books,
records, documents, papers, memoranda and correspondence,
showing or tending to show a fraudulent intent, and/or
knowledge as elements of the crime of false pretenses, in viola-
tion of Article 27, Section 140, of the Annotated Code of Mary-
land, 1957 Edition, as amended and revised, together with other
fruits, instrumentalities and evidence of crime at this [time] unknown.
427 U.S. at 480–81 n.10 (emphasis added). Andresen accept-
ed the propriety of looking at every document in his posses-
sion but maintained that the italicized phrase entitled the
agents to seize anything they wanted. The Justices conclud-
ed, however, that, when read in context, the contested lan-
guage did no more than permit the seizure of any other evi-
dence pertaining to real-estate fraud, the subject of the war-
rant. Id. at 479–82.
Just so with this warrant. It permits the search of every
document on the cell phone, which (like a computer) serves
the same function as the filing cabinets in Andresen’s office.
See Riley v. California, 134 S. Ct. 2473, 2489 (2014). And as
4 No. 18-2019
with filing cabinets, the incriminating evidence may be in
any file or folder. That’s why courts routinely conclude that
warrants with wording similar to the one at issue here are
valid. See, e.g., Archer v. Chisholm, 870 F.3d 603, 616 (7th Cir.
2017); United States v. Hall, 142 F.3d 988, 996–97 (7th Cir.
1998); Wayne R. LaFave, 2 Search & Seizure §4.6(d) (5th ed.
2012 & Supp. 2018) (citing many other cases). It is enough,
these decisions hold, if the warrant cabins the things being
looked for by stating what crime is under investigation.
Andresen and its successors show that specificity is a rela-
tive maher. A warrant may be thought “too general” only if
some more-specific alternative would have done beher at
protecting privacy while still permihing legitimate investiga-
tion. See United States v. Vitek Supply Corp., 144 F.3d 476, 482
(7th Cir. 1998); United States v. Bentley, 825 F.2d 1104, 1110
(7th Cir. 1987). So if the police had known that Andresen
kept all of his files about the real-estate deal in a particular
cabinet, failure to identify that cabinet in the warrant would
have violated the constitutional particularity requirement.
But a warrant need not be more specific than knowledge al-
lows. In Andresen the police did not know how the target or-
ganized his files, so the best they could do was the broad
language the warrant used. Likewise here: the police did not
know where on his phone Bishop kept his drug ledgers and
gun videos—and, if he had told them, they would have been
fools to believe him, for criminals often try to throw investi-
gators off the trail. This warrant was as specific as circum-
stances allowed. The Constitution does not require more.
AFFIRMED