                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0438n.06

                                          No. 18-3900

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
 UNITED STATES OF AMERICA,                              )                    Aug 21, 2019
                                                        )                DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,                             )
                                                        )      ON APPEAL FROM THE
 v.                                                     )      UNITED STATES DISTRICT
                                                        )      COURT FOR THE
 KENNETH RAY EVANS,                                     )      NORTHERN DISTRICT OF
                                                        )      OHIO
        Defendant-Appellant.                            )




       Before: CLAY, LARSEN, and READLER, Circuit Judges.

       LARSEN, Circuit Judge. A police officer found Kenneth Evans unconscious from a drug

overdose. After rendering medical assistance, the officer collected Evans’ cell phone to safeguard

potential evidence of drug trafficking. Another officer then put the phone on airplane mode to

prevent its contents from being erased remotely. In doing this, the officer glimpsed a thumbnail

image of a topless, prepubescent girl. After law enforcement secured a warrant to search Evans’

phone for evidence of drug trafficking and child pornography, a forensic search disclosed over 500

images of child pornography stored on the phone.

       Evans moved to suppress the child pornography as the fruit of an unconstitutional search.

The district court denied the motion, holding that law enforcement had not conducted an

“intentional search” in violation of the Fourth Amendment. Alternatively, the district court held

that the inevitable-discovery doctrine precluded suppression because law enforcement would have

discovered the child pornography when searching Evans’ phone for evidence of drug trafficking.
No. 18-3900, United States v. Evans


Because the district court did not apply the right Fourth Amendment standard or create a record

sufficient for review of its inevitable-discovery determination, we VACATE the district court’s

judgment and REMAND for further proceedings.

                                                I.

       Responding to a report of a possible drug overdose, Officer Mark Fetheroff of the Mentor

Police Department discovered Evans unconscious in the backseat of a car. Fetheroff ensured that

Evans received medical care and then questioned the car’s driver, Jessica Corby. Corby denied

knowing Evans; she said that she had seen him struggling to walk and had offered to drive him to

a hospital. Corby then let Fetheroff search her car. On the backseat, he saw an iPhone, displaying

an unread text from a person named “Max.” Corby told Fetheroff the phone belonged to Evans.

With Corby’s permission, Fetheroff then searched Corby’s own cell phone and discovered that she

had also just received a text from “Max.” At that point, Corby admitted that she had lied, and that

“Max” had sent her to pick up Evans.

       Fetheroff suspected that Evans’ phone might contain evidence of drug-trafficking activity,

so he took it to the police station’s evidence processing room. There, Detective Matthew Alvord,

sought to put Evans’ phone in airplane mode, which would disable the phone’s wireless

transmission functions. Alvord did this to prevent evidence on the phone from “remotely being

tampered with or wiped” before the police could secure a warrant to search the phone’s contents.

By placing the phone in airplane mode, Alvord acted pursuant to law enforcement policy directing

officers to “place [a seized] phone in airplane mode if [they] are able to.” Alvord was trained to

first put a seized phone in airplane mode and then power it down.

       Alvord used a Google Android as his primary cellular phone, and he had no specific

training in how to enable airplane mode on an Apple iPhone 7, Evans’ model of phone. But Alvord



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No. 18-3900, United States v. Evans


knew that he could enable airplane mode via the settings application. To accomplish this, Alvord

first hit the “home” button, which brought the phone out of dormant mode. Alvord then swiped

left on the screen, trying to find the settings application. Instead, this action opened camera mode.

Unbeknownst to Alvord, Evans’ phone was not locked or password protected. Because Evans’

phone was not password protected, camera mode revealed a thumbnail image—in the bottom left-

hand corner of the screen—of the most recent picture from the phone’s photo gallery. The image

showed a topless, prepubescent girl wearing bikini underwear.

       Alvord exited camera mode by pushing the power button. Then, still trying to find the

settings application, he double-tapped the home button. This action opened the most recent

application Evans had used—the photo application—revealing several pictures, including, again,

the photograph of the topless young girl. After exiting the photo application, Alvord was able to

access the settings application and successfully activate airplane mode.

       Alvord later prepared an affidavit, requesting a warrant to search Evans’ phone. The

affidavit first affirmed that there was probable cause to believe that the phone “contain[ed] data

relating to an investigation of drug activity: names, contacts, telephone numbers, text messages,

emails, [and] dates and times of communication.” Second, the affidavit affirmed that there was

probable cause to believe that the phone “contain[ed] images, both moving and still pictures, text

messages, picture messages/emails and or other digital evidence, metadata[,] and attributes

linking” Evans to child pornography. Based on Alvord’s affidavit, a judge approved a warrant to

search Evans’ phone for the items described. The same day, the Mentor Police Department and

the FBI executed the search warrant. A forensic analysis of the phone revealed the presence of

digital files containing over 500 images of real minors engaged in sexually explicit conduct.




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No. 18-3900, United States v. Evans


       A federal grand jury later indicted Evans for knowingly receiving and distributing files

containing pictures of minors engaged in sexually explicit conduct, in violation of 18 U.S.C.

§ 2252(a)(2). Evans moved to suppress the evidence seized from his phone, arguing that the police

failed to use the least intrusive means to secure the potential evidence on the phone. For instance,

Evans argued the officers could have secured the phone using a Faraday Bag.1 Moreover, Evans

produced an expert witness who testified that accessing the settings application on an iPhone 7

would not require swiping left as Alvord had done. The expert also testified that accessing the

settings application was not the most efficient way of enabling airplane mode on the iPhone 7;

Alvord could instead have enabled airplane mode by swiping up (rather than left) on the home

screen and then tapping the control center’s airplane mode icon.

       Based on this evidence, Evans argued that Alvord had searched his phone in violation of

the Fourth Amendment because the detective’s conduct allowed him to view the phone’s pictures

without a warrant. Because the search-warrant affidavit relied on the allegedly unlawful search,

Evans urged the court to suppress the child pornography recovered from his phone as fruit of the

poisonous tree.

       The district court denied the motion. The district court held that Alvord had not conducted

an “intentional search” in violation of the Fourth Amendment. The court also held that suppression

was unnecessary under the inevitable-discovery doctrine because police would have found the

child pornography when searching Evans’ phone for drug-trafficking evidence. Evans ultimately

pleaded guilty, reserving his right to appeal the district court’s evidentiary ruling. The court

sentenced Evans to seventy months’ imprisonment, and Evans now appeals.




1
  Faraday Bags “are essentially sandwich bags made of aluminum foil” that can be used to
“isolate[] the phone from radio waves.” Riley v. California, 573 U.S. 373, 390 (2014).

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No. 18-3900, United States v. Evans


                                                II.

       We review the district court’s factual findings for clear error and its conclusions of law and

application of the law to the facts de novo. United States v. Lichtenberger, 786 F.3d 478, 481 (6th

Cir. 2015). We may affirm the district court’s denial “on any ground supported by the record and

may consider . . . evidence [in the record] in addition to evidence considered at the suppression

hearing.” United States v. Binford, 818 F.3d 261, 267 (6th Cir. 2016). In doing so, we view all

evidence in the light most favorable to the government. United States v. Pearce, 531 F.3d 374,

379 (6th Cir. 2008).

                                                III.

       Evans argues that the district court erred in basing its Fourth Amendment determination on

Alvord’s subjective intent. Evans is right. The district court held that Alvord did not commit a

Fourth Amendment violation because he did not intend to conduct a search. But “the subjective

intent of the law enforcement officer is irrelevant in determining whether that officer’s actions

violate the Fourth Amendment.” Bond v. United States, 529 U.S. 334, 338 n.2 (2000). The

government does not dispute this point. Instead, the government argues that, under the Supreme

Court’s decision in Riley v. California, 573 U.S. 373 (2014), Alvord’s conduct did not violate the

Fourth Amendment. Should we hold otherwise, the government contends that the good-faith

exception to the exclusionary rule, see United States v. McClain, 444 F.3d 556 (6th Cir. 2005);

Herring v. United States, 555 U.S. 135 (2009), precludes suppression. Lastly, the government

urges that we affirm the district court’s application of the inevitable-discovery doctrine under Nix

v. Williams, 467 U.S. 431 (1984).

       Because it applied the wrong Fourth Amendment standard, the district court never decided

the legitimacy of Alvord’s conduct under Riley. Nor did the court rule on the applicability of the



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No. 18-3900, United States v. Evans


good-faith doctrine under McClain or Herring. The district court did rule on inevitable discovery.

But the court raised the issue sua sponte, without developing a record sufficient for us to decide

whether the relevant evidence would, in fact, have been inevitably discovered. We do not know,

for example, whether any child pornography was embedded in the “text messages” and “emails”

that the police were plainly authorized to search for evidence of drug trafficking or, similarly,

whether their ability to search for other items, such as “names” or “contacts,” would have allowed

the police to inspect the phone’s photo gallery. Indeed, we do not know where on the phone the

images were stored. Nor do we know whether the police would have requested a broader warrant

to search for evidence of drug trafficking absent the discovery of child pornography on Evans’

phone. In our view, the outcome of the inevitable-discovery analysis turns on these factual issues.

       The limited record also inhibits our ability to decide the Fourth Amendment and good-faith

questions in the first instance. In Riley, the Supreme Court acknowledged that “specific concerns

about the potential loss of evidence in a particular case” could justify intrusions into a phone based

on an “exigent circumstances” rationale. 573 U.S. at 391. The Court indicated that such intrusions

could require a “few necessary steps,” and that courts should review the reasonableness of those

steps under Illinois v. McArthur, 531 U.S. 326 (2001), which “approved officers’ reasonable steps

to secure a scene to preserve evidence while they awaited a warrant.” Riley, 573 U.S. at 391. The

steps Alvord took to enable airplane mode via the settings application would seem to require

scrutiny under McArthur. But McArthur outlined a fact-intensive, multi-factor analysis for which

the current record is altogether unsuited.2


2
 In McArthur, police prevented a suspect from entering his trailer unaccompanied until they could
secure a warrant to search it for contraband. 531 U.S. at 329. The Court found the police’s actions
to be reasonable and noted four factors supporting this conclusion: (1) the police had probable
cause to believe the trailer contained evidence of a crime; (2) the police had “good reason to fear
that” the defendant would destroy the evidence if allowed in the trailer unaccompanied; (3) “the
police made reasonable efforts to reconcile their law enforcement needs with the demands of

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No. 18-3900, United States v. Evans


       Holes in the record would likewise complicate a good-faith analysis under this court’s

decision in McClain. McClain held that the good-faith exception, derived from United States v.

Leon, 468 U.S. 897 (1984), “can apply in a situation in which the affidavit supporting the search

warrant is tainted by evidence obtained in violation of the Fourth Amendment.” 444 F.3d at 565.3

McClain limited its holding to circumstances where “the facts surrounding the initial Fourth

Amendment violation were ‘close enough to the line of validity’” to make reliance on the warrant

“objectively reasonable.” Id. at 566 (quoting United States v. White, 890 F.2d 1413, 1419 (8th

Cir. 1989)). And McClain suggested that an “important[],” though perhaps not dispositive, factor

in its analysis was that “the officers who sought and executed the search warrants were not the

same officers who performed the initial warrantless search.” Id. Here, we know that Alvord both

engaged in the initial intrusion into Evans’ phone and secured the warrant. But did Alvord

participate in the execution of that warrant? We do not know. All we know is that the Mentor

Police Department and the FBI were involved.

       Under these circumstances, it is appropriate for us to remand to the district court. Cf.

United States v. Carr, 355 F. App’x 943, 946 (6th Cir. 2009) (“[T]he district court is more familiar

with the relevant evidence, has had an opportunity to observe the witnesses and evaluate their

credibility, and has the ability to take additional testimony to develop the record further . . . .”).




personal privacy” by “impos[ing] a significantly less restrictive” measure than arresting the
defendant or performing a warrantless search of the trailer; and (4) “the police imposed the
restraint for a limited period of time.” Id. at 331–32. We wonder, moreover, whether these factors
implicate (or overlap with) the Supreme Court’s longstanding doctrine “that searches and seizures
based on mistakes of fact can be reasonable.” See Heien v. North Carolina, 135 S. Ct. 530, 536
(2014); Illinois v. Rodriguez, 497 U.S. 177, 183–86 (1990). After all, Alvord only glimpsed the
child pornography because he made a mistake—swiping left was not, as he believed, a way to
access the settings application and enable airplane mode.
3
 We note that the McClain rule is subject to a deep circuit split. See, e.g., United States v. Loera,
923 F.3d 907, 926 (10th Cir. 2019) (collecting cases).

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No. 18-3900, United States v. Evans


On remand, “the parties and district court should develop a more thorough factual record” to decide

the legal issues we have discussed insofar as they are necessary to the outcome. City of Pontiac

Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 433 (6th Cir. 2014) (en banc).

                                               ***

       For the foregoing reasons, we VACATE the district court’s judgment and REMAND for

further proceedings consistent with this opinion.




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