Fourth Amendment; Warrantless cell-phone search; Third-party consent; Common authority; United States v Gardner; Seizure of cell phone; Probable cause; Ineffective assistance of counsel claim on direct review; Judicial bias; Recusal; Liteky v United States

The court held that defendant’s former girlfriend had common authority to consent to the search of his cell phone, the phone’s seizure was not plainly erroneous, and the district judge did not exhibit bias. He was convicted of possessing meth and cocaine with intent to distribute and FIP of ammunition. His former girlfriend (E) had his phone after his arrest, used it to contact his parole officer, knew its passcode, and told officers it was her only means of communication. On appeal, the court concluded that these circumstances supplied common authority. “The facts here demonstrate that a reasonable officer could believe that [E] had sufficient ‘joint access or control’ over the phone such that she could consent to the officers searching the cell phone.” Even knowing defendant owned the phone did not alter that conclusion because E “by all reasonable appearances had ‘joint access or control’” over it. Thus, “no Fourth Amendment violation occurred,” and the court did not need to decide whether defendant’s parole conditions independently permitted the search. As to the phone’s seizure, once officers saw images of defendant possessing firearms, “they knew that the phone contained evidence of criminal activity” and “had probable cause to seize the phone for a limited time pending the execution of a search warrant.” The court next concluded that, although the district judge showed frustration with defendant, review of the entire record revealed “no signs of explicit or implicit bias.” As the court put it: “Frustration with the defendant’s attitude, perhaps. But not grounds for recusal.” The court declined to address his ineffective assistance claims on direct review. Affirmed.