Take the Fifth

Designated for publication

• U.S. v. Morton, 19-10842, appeal from N.D. Tex.
  • Costa, J. (joined by Richman, Jones, Smith, Stewart, Southwick, Haynes, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.); Higginson, J., concurring (joined in whole by Elrod, Willett, JJ., and in part by Ho, Wilson, JJ.); Graves, J., dissenting (joined by Dennis, J.); Jolly, J., not joining in dissent, but standing by original panel opinion; criminal, search and seizure
  • Affirming conviction for receipt of child pornography, pursuant to evidence on defendants’ cell phones seized under a second set of search warrants after a first set of search warrants related to a drug arrest had allowed officers to look at photos on the phones. The original panel opinion had
  • Arresting officers had arrested the defendant after pulling him over and, after smelling marijuana, searching the defendant and his van and finding marijuana and ecstasy. The officers also found three cell phones, and obtained a warrant to search the phones for evidence–including photos–of illicit drug activity, representing in their affidavit that people involved in drug activity “often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs.” When they began to search the phones, they found images of what appeared to be child pornography, so they went to the same judge and obtained a second search warrant to search the phones for more such images, eventually locating almost 20,000 images of child pornography. The district court denied the defendant’s motion to suppress, and the defendant was convicted. The initial panel of the Court vacated the conviction, holding that there was not probable cause to search the phones for images, but only the contacts, call logs, and text messages, under the initial search warrant; and that the good-faith exception did not apply because reasonable officers should have known that searching the images on the phone for drug-trafficking-related evidence was not supported by probable cause.
  • The en banc majority held that the good-faith rule supported denial of the motion to suppress. “Evidence should not be suppressed when law enforcement obtained it in good-faith reliance on a warrant.” The Court held that, because the exclusionary rule is a judicial doctrine to deter the unlawful obtaining of evidence, it should not be applied to good faith police conduct nor to punish errors of magistrates who issue the warrants. The Court held that the affidavit here was not a “bare bones” affidavit that would bar invocation of the good-faith rule. “The affidavits used to search Morton’s phones are not of this genre; they have some meat on the bones. Each is over three pages and fully details the facts surrounding Morton’s arrest and the discovery of drugs and his phones. They explain where the marijuana and glass pipe were discovered, the number (16) and location of the ecstasy pills, and the affiant’s knowledge that cellphones are used for receipt and delivery of illegal narcotics. In support of the request to search for photos on the phones, the affiant explains he ‘knows through training and experience that criminals often take photographs of co-conspirators as well as illicit drugs and currency derived the sale of illicit drugs.’ Whatever one might conclude in hindsight about the strength of the evidence it recounts, the affidavit is not wholly conclusory.”
  • Because the Court characterized this as a “close call,” it would not second-guess the magistrate who issued the warrant.
  • Judge Higginson separately concurred, to emphasize the heightened privacy interest that an arrestee has in the contents of their cell phone, and to discuss the various proposed approaches to adequately protecting that interest.
  • Judge Graves dissented. He found the reliance on the good-faith rule to be an improper evasion of the analysis of whether there was probable cause in this case. “In failing to analyze this case for probable cause, the majority condones the government’s extensive and intrusive search of cell phones and its failure to provide any explanation of how those particular phones relate to the charged crime. In essence, it insulates officers from having to connect the dots between their general knowledge and experience—as detailed in a probable cause affidavit—and the basis for that specific search warrant.”

• U.S. v. Hamilton, 21-11157, appeal from N.D. Tex.
  • Elrod, J. (King, Elrod, Southwick), criminal, bribery
  • Vacating convictions for bribery concerning a local government receiving federal benefits and conspiracy to do the same, and remanding for further proceedings.
  • The Court held that federal-programs bribery under 18 U.S.C. § 666 requires a quid pro quo. Where the defendant received nothing tangible in return for giving money to members of the Dallas City Council, and the jury was instructed that no quid pro quo was required for conviction, the Court therefore vacated his conviction.

• Uptown Grill, L.L.C. v. Camellia Grill Holdings, Inc., 21-30639, appeal from E.D. La.
  • Higginson, J. (Higginbotham, Higginson, Oldham), trademark infringement, sanctions, Rooker-Feldman doctrine
  • Affirming ruling denying motion to dismiss trademark infringement claims, a ruling entering a permanent injunction, and a ruling denying a motion for Rule 11 and § 1927 sanctions.
  • In this long-running and multi-forum set of lawsuits arising from the sale and trademarks in the Camellia Grill restaurant, the Court first held that the Rooker-Feldman doctrine did not apply to require dismissal of the federal trademark-infringement suit. The Court agreed with the district court that “the case does not constitute a complaint of an injury caused by a claim ‘inextricably intertwined’ with a state court decision.”
  • The Court then affirmed the scope of the permanent injunction entered by the district court.
  • As to the denial of Rule 11 sanctions for failure to comply with the safe harbor provision, the Court held “that the Rule 11 safe harbor provision requires identicality. Here, as the district court found, the served motion and the filed motion contained substantial differences. The motions were thus not identical, and the district court properly denied the motion and declined to enter sanctions.”

• King v. Baylor University, 21-50352, appeal from W.D. Tex.
  • Jones, J. (Jones, Higginson, Duncan), Duncan, J., concurring; breach of contract, COVID-19
  • Affirming in part and reversing in part 12(b)(6) dismissal of student’s class claims against university for failure to refund tuition and fee amounts after on-campus instruction and activities were curtailed in response to the COVID-19 pandemic, and remanding for further proceedings.
  • The district court had dismissed the student’s claims under the educational malpractice doctrine, which recognizes that professional educators, rather than judges, are charged with the determining the learning method to be used in teaching their students; and also held that the Financial Responsibility Agreement (FRA) executed by the student upon registering for Spring 2020 classes did not specify that classes would be conducted in-person as opposed to online.
  • The Court held that the FRA is enforceable, but that the district court erred in not finding that the term “educational services” in the FRA was ambiguous, and in failing to provide an interpretation of that term. The Court noted, first, that the FRA was balanced by adequate consideration, in that the student did receive educational services (“[w]hatever ‘educational services’ means”) in return for the payment of tuition and fees; and that it did contain the essential terms to comprise an enforceable contract under Texas law.
  • While the term “educational services” was adequately specific to comprise an enforceable contract, the Court held that it was ambiguous for purposes of interpreting that contract and determining breach as a matter of law. “Whether ‘educational services’ further includes ‘benefits and services above and beyond basic academic instruction’ is a question of contract interpretation, not validity, and the denial of such services may raise a question of breach.” The Court held that, on remand, the district court must determine whether the term is latently ambiguous, and must consider the circumstances of the formation of the FRA.
  • The Court, however, affirmed the dismissal of the student’s implied contract and unjust enrichment claims.
  • Judge Duncan concurred, agreeing with the majority and further explaining what contract principles he believed should govern the district court’s proceedings on remand.

Unpublished

• Ixquier-Morales v. Garland, 21-60485, petition for review of BIA order
  • per curiam (King, Higginson, Willett), immigration
  • Denying Guatemalan citizen’s petition for review of BIA order affirming the immigration judge’s (IJ’s) denial of asylum, withholding of removal, and protection under the Convention Against Torture.

• Gadsden v. Withers, 21-60832, appeal from S.D. Miss.
  • per curiam (Jolly, Engelhardt, Willett), habeas corpus
  • Affirming dismissal as frivolous petitioner’s third sec. 2241 petition.