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Tenth Circuit Breviaries

Sun, 08/18/2019 - 16:13
Conditions of Release

A special condition of supervised release granting authority to the probation officer to decide whether and when the defendant may use computers and internet-access devices is impermissibly broad and an abuse of discretion in United States v. Blair
Civil Rights

Prosecutors are not absolutely immune from liability for fabricating evidence during the preliminary investigation of a crime. For more information, and a fascinating (if disturbing) account of a wrongful conviction, read Bledsoe v. Vanderbilt.

Yes, officer, you may stop someone for flipping you off

Wed, 08/14/2019 - 14:00
So says the Court of Appeals of North Carolina. The court held that a state trooper had reasonable suspicion to stop a vehicle after its passenger flashed an obscene hand gesture at the officer, as the vehicle passed the officer assisting a stalled motorist. During the stop, the passenger refused to provide identification, and got a ticket for obstructing a public officer.

In approving the stop, the court explained that even if the middle-finger gesture itself is not a crime, the "trooper saw Defendant make rude, distracting gestures while traveling on a highway in a moving vehicle in the vicinity of other moving vehicles." Those gestures, the court said, were evidence of the crime of disorderly conduct. The court stressed that the gestures were aimed at an "unknown target" and "could alert an objective officer to an impending breach of the peace."

This result differs from one reached by the Sixth Circuit earlier this year.  In the Sixth Circuit case, a traffic stop had ended and the driver gestured to the officer as she left. The officer pulled her over again, and upgraded the already-given ticket to a more serious violation. The Sixth Circuit concluded that the stop violated the Fourth Amendment because the driver “did not break any law that would justify the second stop and at most was exercising her free speech rights.” In direct contrast to the North Carolina court, the Sixth Circuit found that not only is the gesture itself not a crime, but it is also not evidence of any other ongoing crime.

Tenth Circuit Breviaries

Sun, 08/11/2019 - 08:37
Last week in the Tenth Circuit:

Defense experts

Don't be tardy or stingy with your defense-expert notice, especially if the court has granted multiple continuances to accommodate your expert search. That's the lesson of United States v. Paup, affirming a magistrate judge's exclusion of the defendant's expert witness.

Sentencing: obstruction of justice

In Paup, the Tenth Circuit also affirmed the magistrate judge's imposition of a 2-level offense-level increase for perjury under USSG 3C1.1.

Notice of appeal

A person who has been convicted and sentenced may immediately appeal from the judgment of conviction and sentence, even if restitution is still pending. This is true even if the district court has upheld a magistrate-imposed sentence and remanded the case to the magistrate for further restitution proceedings. Despite the outstanding restitution order, the conviction and sentence are final for notice-of-appeal purposes. Read Paup to learn more.

Cautionary note: This notice of appeal will not invoke appellate review of the eventual restitution order. A separate notice of appeal must be filed from that order, at which point, if practicable, the two appeals may consolidated.

Tenth Circuit Breviaries

Sun, 08/04/2019 - 10:39
Only one published criminal case from the Tenth Circuit last week:

Sentencing: official victim

USSG 3A1.2(c)(1) provides for a hefty 6-level offense-level increase if the defendant assaulted a law-enforcement officer. This guideline requires proof of an intent to instill fear of bodily harm. So said the Tenth Circuit in United States v. Gonzales, vacating Mr. Gonzales's sentence and remanding for resentencing because the district court erroneously interpreted this section as lacking any intent requirement.

"This ends here": no more sentencing based on acquitted conduct (in Michigan state court, anyway)

Wed, 07/31/2019 - 17:52
The Tenth Circuit has long held---as have other circuits---that a district court may consider acquitted conduct as relevant conduct at sentencing.

It's time to ask the circuits to reconsider. This week, the Michigan Supreme Court held that "due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted." In People v. Beck (available here), the majority explained why this conclusion is not foreclosed by existing United States Supreme Court decisions. The majority also offered an impressive list of judges and commentators who have criticized the use of acquitted conduct at sentencing, including Justice Kavanaugh when he was on the DC Circuit (see here).

The Michigan decision was based not on the Michigan state constitution, but on the due process clause of the Fourteenth Amendment to the United States Constitution. Chances are good that the state will petition the United States Supreme Court for a writ of certiorari. Will the High Court bite? I don't know, but it won't hurt our clients to start preserving the issue (and it might hurt them if we don't).

Tenth Circuit Breviaries

Sun, 07/28/2019 - 17:26
Last week at the Tenth Circuit:


In Eaton v. Pacheco, a federal district court partially granted Section 2254 relief to Mr. Eaton, vacating his Wyoming death sentence. But the district court affirmed Mr. Eaton's convictions for murder and other crimes, and refused to bar the state from conducting new death-penalty proceedings. On appeal, the Tenth Circuit affirmed, holding that (1) the district court was not required to hold an evidentiary hearing on Mr. Eaton's ineffective-assistance-of-counsel-claims; (2) the district court did not err in denying those claims; (3) the district court did not err in refusing to bar further death-penalty proceedings; and (4) Mr. Eaton's Brady claim was waived (as to sentencing) and beyond the scope of his certificate of appealability (as to guilt).

Of particular interest to postconviction practitioners are Eaton's discussions of Pinholster; of stand-alone IAC claims versus IAC as cause/prejudice to excuse procedural default; and of the need for specificity in requesting Section 2254 relief.

The Tenth Circuit also reminds all appellate practitioners in Eaton that arguments raised perfunctorily in an opening brief, or for the first time in a reply brief will be considered waived.

Sentencing: organizer/leader versus manager/supervisor

Check out United States v. Rubio-Sepulveda (unpublished) for a detailed discussion of what makes an organizer/leader versus a manager/supervisor under USSG 3B1.1. In this case the Tenth Circuit held that the district court clearly erred when it applied the organizer/leader enhancement to Mr. Rubio-Sepulveda.

How to get a Franks hearing

Thu, 07/25/2019 - 17:24
What makes a good Franks motion? To find out, check out Judge Dillon's order granting a hearing in United States v. Anderson, No. 7:19-cr-00027, 2019 WL 3307841 (W.D. Va. July 23, 2019).

In Anderson, the search warrant affidavit at issue (1) failed to clarify that the affiant was relying on controlled buys conducted by two (not just one) confidential informants (and not conducted by the affiant himself); (2) made no statements concerning either confidential informant's credibility; and (3) omitted information that the first confidential informant had been caught with a narcotic during a previous controlled buy and had been terminated from the investigation.

This detailed offer of proof was sufficient to warrant a Franks hearing:

"[W]hat the magistrate did not know, and could not have gleaned from the totality of the affidavit, is that there were two different confidential informants, that no information about reliability or trustworthiness had been provided for either of them, and that the first confidential informant was in possession of narcotics during one of the earlier controlled buys from Anderson. Therefore, looking to the omissions and the affidavit as a whole, the court finds that Anderson has also made a substantial preliminary showing under the materiality prong that the omitted information was material and necessary to the finding of probable cause."

Tenth Circuit Breviaries

Sun, 07/21/2019 - 14:29
Last week at the Tenth Circuit:

Waiver of Right to Counsel

When a person charged with a crime seeks to proceed pro se, the district court must ensure that the person's waiver of counsel is knowing and intelligent. Among other things, the district court must properly warn the person of the need to adhere to federal procedural and evidentiary rules. In United States v. Hansen, a tax-crimes prosecution against a sovereign citizen, the district court failed to do just this, rendering Mr. Hansen's waiver inadequate. Convictions and sentences vacated.

Fourth Amendment

In United States v. Pittman (unpublished), the Tenth Circuit affirmed the district court's denial of Mr. Pittman's motion to suppress, reminding us along the way that the Federal Rules of Evidence do not apply at a suppression hearing.

"Sloppy study of the laws" leads to suppression

Thu, 07/18/2019 - 18:35
We learned a few years ago in Heien v. North Carolina, 574 U.S. 54 (2014), that the exclusionary rule does not apply to the fruit of a police seizure based on an objectively reasonable mistake of law.

But what about an earnestly believed mistake of law?

If that belief is not objectively reasonable, then it cannot support the seizure.

So held D. Kan. Judge Teeter in a recent order suppressing the fruit of a traffic stop for leaving a running car "unattended." "Unattended" as used in the Topeka ordinance at issue does not apply to a car that is simply "unoccupied" while its driver remains nearby. The seizing officer's earnest belief to the contrary was not reasonable. Applying the exclusionary rule in this circumstance will deter "a sloppy study of the laws" that officers are duty-bound to enforce.

Evidence suppressed.

Tenth Circuit Breviaries

Sun, 07/14/2019 - 15:00
Fourth Amendment

When and for how long may a passenger be detained during a traffic stop? "So long as law enforcement retains the ‘need to control the scene’—here, for at least the duration of a consent search of the vehicle—the longstanding interest in officer safety outweighs any additional intrusion created by investigatory detention to a passenger’s personal liberty." That's the lesson of United States v. Gurule. The Gurule Court also held that law enforcement's frisk of Mr. Gurule during this traffic stop was reasonable.

Conditions of Release

A person may move to amend the conditions of his or her pretrial release under 18 U.S.C.  § 3145(a)(2). Fed. R. Crim. P. 59(a)'s framework (for appeals from matters referred to a magistrate) does not apply to this type of motion. And thus, in United States v. Doby, the Tenth Circuit held that the district court erred in denying Mr. Doby's Section 3145 motion to amend as untimely under Rule 59.

Predicate Offenses

An Oklahoma felony conviction for conspiracy to shoot with intent to kill is not an ACCA predicate, despite its inclusion of an overt-act element. United States v. Wartson (unpublished). Read Wartson for a good discussion of how the categorical approach works under the ACCA's element-of-force clause (the predicate offense must do more than merely involve the use or threatened use of force, it must include an element of force).

Federal Expungements

Federal expungements of arrests, acquittals, and convictions, though rare, do exist, at least for now in the Tenth Circuit. Want to know more? Read United States v. Trzaska (unpublished).

Is your "alien" client really a US citizen?

Thu, 07/11/2019 - 20:27
Federal records indicate that between 2007 and 2015, more than 1,500 US citizens spent time in immigration detention. And those are the just the numbers acknowledged by the government. Is your unlawful entry/reentry client really a US citizen? Read this article about citizens illegally detained by ICE, and get inspired to challenge the government's case for alienage.

Remember: Challenging alienage is not as complicated as trying to undo an underlying removal order. Alienage is an essential element that the government is required to prove. Demand exculpatory discovery regarding this essential element. Make the government prove this element at trial.

Tenth Circuit Breviaries

Sun, 07/07/2019 - 15:16
Last week at the Tenth Circuit:

Fourth Amendment

In United States v. Mathews, the Tenth Circuit held that, under the totality of circumstances, ATF investigators reasonably searched Mr. Mathews’s historical GPS data (collected from his ankle monitor while he was under a state community supervision order). This was a legal question that the district court appropriately resolved without an evidentiary hearing. Read this case for a fuller understanding of the law regarding warrantless searches involving people on state parole/probation.

FRE 702/Daubert

Mathews also reminded us that “Daubert does not mandate an evidentiary hearing.” And that if we want to preserve a challenge to the reliability of an expert’s opinions, conclusions, and methodologies, we must do more than simply challenge the expert’s credentials. Specificity in making Daubert objections is key to appellate review. 

Fourteenth Amendment/Due Process

In case you didn't know, "[e]xposing a person's naked body involuntarily is a severe invasion of personal privacy" implicating due-process concerns. Consequently, the district court properly denied qualified immunity to six deputy sheriffs who walked a man in their custody through the public area of a hospital completely unclothed but for a pair of orange mittens. So said the Tenth Circuit in Colbruno v. Kessler, a § 1983 case.

Rehaif v. United States: Scienter separates "wrongful from innocent" conduct

Mon, 07/01/2019 - 22:52
Under federal law, certain people cannot possess firearms based on their status: felons, fugitives, those lacking legal immigration status, and so forth. See 18 USC sec. 922(g).  Previously, the Tenth Circuit held that to convict someone of this crime, the only mens rea required was "knowledge that the instrument possessed is a firearm.” The government did not have to prove that the person knew of their ineligible status.

Justice BreyerBut that changed with the Supreme Court's decision in Rehaif v. United States last week, in a 7-2 opinion by Justice Breyer.:
We hold that the word "knowingly" applies both to the defendant's conduct and to the defendant's status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.Rehaif was convicted of possessing a firearm while he was in the country without legal immigration status, under sec. 922(g)(5). He had been here on a student visa, but that lapsed. At trial, the jury was instructed that the "United States is not required to prove" that Rehaif "knew that he was illegally or unlawfully" in the United States. He was convicted, and the Eleventh Circuit upheld the conviction.

The Supreme Court did not agree. Emphasizing the text of the statute, the Court required the presumption of scienter to separate "wrongful from innocent" conduct.
It is therefore the defendant's status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach.The Court offered two examples:
If the provisions before us were construed to require no knowledge of status, they might well apply to an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is "punishable by imprisonment for a term exceeding one year."To break it down, Rehaif requires that the government prove, in a felon-in-possession case, that,

1) the person had a prior disqualifying felony (punishable by more than one year in prison) and 
2) that the person knew that they were convicted of a  disqualifying felony at the time of the alleged possession.

These are not the same element. Proof that the person was convicted of a felony years before is not the same as proof that they knew they were a felon at the time of the possession.  Someone may have been convicted of a felony, but then believed they could have a gun once they were off supervision. Or they may have been told they were convicted of a felony, but that conviction does not disqualify because it was not punishable by more than one year in prison. 

With Rehaif,  the grand jury must find as an element that the defendant actually knew their status at the time of the possession; it must be alleged in the indictment as an element; and the jury must be so instructed.

Justice AlitoJustice Alito and Thomas dissented, and angrily so. The dissent seemed less concerned about whether the decision was correct and more concerned about the fallout.
The decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions. Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts. A great many convictions will be subject to challenge . . . Let's hope so.

Conditions of release, diversion, probation, etc: testing by ordeal?

Wed, 06/19/2019 - 17:30
Your client is offered pretrial release, or diversion, or a chance to avoid revocation. All he or she must do is prove worthiness by complying with certain conditions for a certain period of time. What a deal!

Not necessarily. In a fascinating new article now available on SSRN or Westlaw, Yale Law School Clinical Professor Fiona Doherty compares these sorts of "testing periods"---during which the defendant has a chance to avoid prison by passing a test---to medieval trials by ordeal. While they are great opportunities for some defendants, they are traps for many others.

As Professor Doherty observes: "It turns out that defendants will accept nearly any arrangement as long as it provides them the opportunity to avoid going to prison. The possibility of avoiding prison is so strong an incentive for defendants that little else is required to counteract the scope of the concessions that judges and prosecutors have been able to demand from defendants in exchange . . . . [F]or defendants facing addiction, mental health issues, or disadvantaged social circumstances, the “test” may be stacked against them from the beginning. Given the high stakes, careful attention needs to be paid to the criteria that are being used in Testing Periods to sort defendants into the system's winners and losers."
Read this article and think about how defense counsel can encourage judges, prosecutors, and probation officers to impose more realistic tests, so that the defendant's gamble in accepting the challenge might actually pay off.

Attempts are not controlled substance offenses under USSG § 4B1.2

Wed, 06/12/2019 - 15:14
Prior drug convictions don't count as "controlled substance offenses" under USSG § 4B1.2 if they are attempt convictions. The reason is simple. The guideline itself (approved by Congress) does not mention attempts.

But what about the commentary? Doesn't it say that the guideline includes attempts? True enough, but the commentary is not approved by Congress, and it may only interpret the guideline, not replace or modify it.

"The Commission’s use of commentary to add attempt crimes to the definition of 'controlled substance offense' deserves no deference. The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses."
So says the Sixth Circuit, unanimously, en banc, in United States v. Havis, No. 15-5772, ___ F.3d ___, 2019 WL 2376070 (6th Cir. June 6, 2019).

The Tenth Circuit disagrees. United States v. Chavez, 660 F.3d 1215 (10th Cir. 2011). But with Havis, we have a deeper circuit split and fresh hope that the Supreme Court will take up the issue and eventually rule in our clients' favor.

Object to your client's prior attempt conviction serving as the basis for a guidelines sentencing enhancement and preserve this issue for review today. If you are in the Tenth Circuit, note the Tenth Circuit's contrary authority. But argue that Havis is better reasoned, and that you are preserving the issue for further review.

Racial dynamics, and the simple desire not to interact with police offer innocent explanations of flight

Sun, 06/09/2019 - 13:04
“[A] black man[] had the misfortune of deciding to avoid contact with the police. Following an anonymous tip that a black man was carrying a gun—which is not a criminal offense in Washington State—police spotted [the man], who was on foot, activated their lights, and pursued him by car . . . . [The man] reacted by running for about a block before the officers stopped him at gunpoint.”

So begins the Ninth Circuit’s opinion last week in United States v. Brown, reversing the district court’s denial of the defendant’s motion to suppress.
There was no reasonable suspicion. The tip was anonymous and unreliable. There was no presumptively unlawful activity. And flight is not tantamount to guilt, especially given the innocent explanations for why a person "may reasonably flee from police."
Invoking Justice Stevens’s discussion on the outer limits of Wardlow, the Ninth Circuit emphasized that established "racial disparities in policing," "racial dynamics in our society," "along with a simple desire not to interact with police" offer "innocent" explanations of flight.
“Among some citizens, particularly minorities and those residing in high crime areas, there is [] the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence.” Illinois v. Wardlow, 528 U.S. 119, 132 (2000) (Stevens, J., concurring in part and dissenting in part).
To support a reasonable-suspicion finding in Brown, the government presented “little more than a black man walking down the street . . . .”
Reversed and remanded.

Representing low-IQ defendants

Thu, 06/06/2019 - 20:05
We've blogged before about the brain science suggesting that young adults (age 18-25) are not so adult after all, a fact the criminal law should take into account.

It turns out that similar brain science suggests that low-IQ adults of any age (IQ between 71 and 85) are likewise less culpable than higher-functioning adults. In a draft article available now via SSRN, author Adam Lamparello explains that low-IQ adults, like juveniles and young adults, struggle with impulse control and the ability to appreciate the consequences of their actions. They are also more likely than other adults to struggle with mental illness and substance abuse, as well as daily living.

If you have a low-IQ client who does not meet the criteria for intellectual disability, read this article and consider how your client's IQ may have contributed to your client's consent to search, inculpatory statements, or alleged criminal conduct. Challenge the government's proof of mens rea. Make a pitch for a lower sentence. And let us know how it turns out.

The constitutional duty to consult about an appeal: understanding when it arises, and what it entails.

Sun, 06/02/2019 - 10:55
In 2000, we learned in Flores-Ortega that counsel’s constitutional duty to “consult” with his client about an appeal is triggered when there is reason to think either (1) that a rational defendant would want to appeal (because there are nonfrivolous grounds to do so), or (2) that the particular defendant reasonably demonstrated to counsel that he was interested in appealing.

The Flores-Ortega court further defined counsel’s duty to “consult” as “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” 
In February of this year, the Supreme Court reaffirmed in Garza v. Idaho that where counsel fails to consult with his client and thereby deprives the client of an appeal that he otherwise would have taken, prejudice is presumed. Importantly, Garza clarified that this presumption of prejudice holds true regardless of whether the defendant has signed an appeal waiver.
The First Circuit’s recent opinion in Rojas-Medina v. United States provides helpful guidance to defense counsel for understanding when the constitutional duty to “consult” with a client about an appeal may be triggered, and what exactly that duty entails—even when an appeal waiver is at play.  
In Rojas-Medina, the defendant had pleaded guilty and signed an appeal waiver. The district court sentenced him to a term of imprisonment to run consecutive to any state sentence that may be imposed. The First Circuit reversed the district court’s dismissal of petitioner’s Section 2255 motion, holding that trial counsel’s failure to consult with the petitioner about an appeal deprived petitioner of an appeal he otherwise would have taken, and prejudice must therefore be presumed.
Some key takeaways from Rojas-Medina:
When the duty to “consult” arises
1.   A duty to “consult” arises, for example, when “a defendant who received consecutive sentences asked ‘about having time run together’ . . .  or when a defendant asked after sentencing ‘what next? What can we do now?’”
2.   The defendant’s inquiry as to why he received “so much time” and the possibility of filing a postconviction motion triggered counsel’s duty to “consult” with him about his right to appeal. (The defendant had “made it luminously clear that he was dissatisfied with the sentence imposed and interested in whatever relief might be available.”)
3.   When it comes to reasonably demonstrating an interest in an appeal, “[w]hat counts is the substance and thrust of what the defendant says to counsel”; the defendant is not required to use “magic words” to trigger counsel’s duty to advise him on his appellate rights.
What the duty to “consult” entails
1.   Counsel did not fulfill his duty of advising client on the pros and cons of taking an appeal by telling him “if he . . . thought there was anything that could be appealed . . . he had fourteen days” within which to inform counsel that he wanted to appeal. “Counsel’s duty to consult requires more than simply notice that an appeal is available or advice that an appeal may be unavailing.”
2.   Finally, Rojas-Medina reminds us that research is required to provide effective advice regarding the ramifications of an appeal waiver. In Rojas-Medina, the plea agreement did not make any recommendation as to whether the sentence should run concurrent or consecutive to any state sentence. And Circuit precedent established that the issue was beyond the reach of an appeal waiver. Trial counsel’s blanket assertion that an appeal waiver would prevent his client from an appeal not only fell below the constitutional duty to consult as outlined in Flores-Ortega, but also was blatantly wrong.
Rojas-Medina, and the Supreme Court’s opinion in Garza, are explicit reminders that counsel must know not only when we’re required to consult with our clients about an appeal, but also what a constitutionally-sufficient consultation entails. 
And ideally, of course, we will be communicating with our clients about the wisdom and objectives of an appeal long before a sentence is pronounced—especially in a case where we are recommending the client agree to an appeal waiver for a strategic reason.

Bad statute? Challenge it.

Wed, 05/29/2019 - 06:36
Bad laws make bad results for our clients, and there's little we can do about that, right?

Wrong! Bad laws are subject to challenge, and the Supreme Court might well take the bait. According to Princeton Professor of Politics Keith Whittington, the Supreme Court has struck down federal laws more often than we might think. Professor Whittington has done the work and has now made available his Judicial Review of Congress Database. The database takes the form of an excel spreadsheet detailing over 1300 cases in which the Supreme Court has considered, on the merits, a constitutional challenge to a federal law and has either upheld the law, struck it as applied, or struck it on its face.

Read the list. Study the cases. Get inspired. Be bold. Challenge that law.

Get a warrant---and get it quickly

Wed, 05/22/2019 - 05:49
We know that law enforcement's seizure of a person may not be longer than necessary to effectuate the legitimate purpose of the seizure (for instance, a traffic stop). The Fourth Circuit made it clear earlier this year that the same rule applies to law enforcement's seizure of a person's cellphone (or other property in which a person has a possessory interest).

In United States v. Pratt, 915 F.3d 266 (4th Cir. 2019), the FBI was investigating the defendant for running a prostitution ring involving minors. An agent seized his cellphone without his consent. But the agent did not get a warrant to search the phone until 31 days later. At a hearing on the defendant's motion to suppress the fruit of the warrant, the defendant argued that this delay was unreasonable. The district court disagreed, but the Fourth Circuit reversed.

Absent the rightful possessor's consent, an extended seizure of property may become unreasonable, explained the Court. Here, the government's only explanation for the delay in seeking a warrant was that law enforcement had to decide in which state to seek the warrant. This explanation was insufficient: "the agents here failed to exercise diligence by spending a whole month debating where to get a warrant."

The Court also rejected the government's argument that it could hold the phone as an instrumentality of the defendant's crime. Only the phone's files had evidentiary value, and thus law enforcement could have copied the files and returned the phone.