Ezra Griffith was a member of a Washington, D.C. gang.


In 2012, Griffith became one of several suspects in the shooting death of a rival gang member. The D.C. Metropolitan Police Department (MPD) had surveillance footage of a getaway vehicle circling the area where the shooting occurred.


Two months into their yearlong investigation, MPD homicide detectives found a vehicle that matched the one in the surveillance footage. The vehicle was registered to Griffith’s mother. Upon questioning by detectives, the mother admitted that Griffith was the primary user of the vehicle.


During this period, and through most of the investigation, Griffith was incarcerated on unrelated charges in the local jail.


Investigation Focuses on Jail Telephone Conversations


At some point in their investigation, detectives decided to retrieve Griffith’s recorded jailhouse telephone calls during the period in which they had questioned his mother. There were four such calls, and during one of these phone conversations with another suspect in the homicide, Griffith and the other suspected discussed a “whip” (slang for car). No mentioned being made that it was used in any crime.


Griffith was released from jail in September 2012 and moved into an apartment with his girlfriend.


Detectives developed no additional information or evidence that linked Griffith to the gang-related shooting death over the next three months.


Detective Files Weak Search Warrant


Nonetheless, one of the detectives, a 22-year law enforcement veteran, on January 4, 2013 submitted a 10-page affidavit in support of an application for a search warrant for Griffith’s girlfriend’s apartment. Only one sentence in the affidavit stated the detective’s belief that there was incriminating evidence in the girlfriend’s apartment linking him to gang-related homicide:


“Based upon your affiant’s professional training and experience and your affiant’s work with other veteran police officers and detectives, I know that gang/crew members involved in criminal activity maintain regular contact with each other, even when they are arrested or incarcerated, and that they stay advised and share intelligence about their activities through cell phones and other electronic communications devices and the Internet, to include Facebook, Twitter and E-mail accounts.”


The affidavit sought a search warrant to seize any and all electronic devices, including cell phones, in the girlfriend’s apartment. A magistrate judge granted the application for the search warrant.


On the morning of January 7, 2013, shortly after 7:00 a.m., a team of MPD officers arrived at the girlfriend’s apartment. The officers surrounded the building. As several officers went to the door of the apartment to announce their presence, one of the officers guarding the premises saw an arm throw a firearm out the window. As the officer seized the weapon, he saw Griffith standing by the window.


Arrested for Firearms Violation


There were only three people in the apartment: Griffith, his girlfriend, and a six-year-old child. Griffith was arrested for being a convicted felon in the unlawful possession of a firearm.


The officers conducting the search seized all the cellphones and electronic devices. A subsequent search of these devices revealed no evidence that connected Griffith to the gang-related shooting death.


Griffith, however, was indicted for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).


Motion to Suppress


In a remarkable pretrial strategy, Griffith’s attorney filed a motion to suppress all the evidence, including the firearm, obtained pursuant to the search warrant because there was no evidence that Griffith ever owned a cellphone or that any such device would be found in the girlfriend’s apartment.


The district court denied the motion and Griffith was subsequently convicted following a jury trial. He appealed his conviction to the D.C. Circuit Court of Appeals.


In an August 18, 2017 split 2-1 decision, the appeals court reversed Griffith’s gun conviction and threw out all the evidence obtained under the warrant. In a nutshell, the court concluded:


‘[W]e do not doubt that most criminals – like most people – have cell phones, or that many cell phones owned by criminals may contain evidence of recent criminal activity. Even so, officers seeking authority to search a person’s home must do more than set out their basis for suspecting him of a crime.”


The appeals court pointedly observed that the 10-page affidavit contained enough information that “might well have supported an arrest warrant for Griffith—which in turn would have occasioned a search of him incident to his arrest, and an ensuing seizure of any cell phone he owned in the most likely place to find it (on his person). But the government elected to seek a license to conduct a full-scale search of the entire home on the possibility that he owned a phone and that a phone found there might be his.”


Suspicion that Might Own a Cell Phone Not Enough for Probable Cause


The Griffith case illustrates a law enforcement tendency to overreach. The homicide detectives did not have a reasonable suspicion, much less concrete evidence, that Griffith had a cell phone. They were greedy – they wanted more than an arrest. They wanted to pillage through the girlfriend’s apartment with an unsupported expectation of finding weapons, drugs, and evidence of gang-related criminal activity.


The MPD homicide detectives lost sight of the fact—assuming they even knew the fact—that the home is the most sacred protection under the Fourth Amendment. It cost them a conviction—and if Griffith did play any role in the gang-related homicide, the detectives will never be able to prove it now.