Warrant Sufficient to Search SD Cards & Phone Based on Evidence of Drug Trafficking

US v. Orozco: Orozco was pulled over for traffic violations. He had a smartphone in his lap running a GPS navigation app but, when asked where he was going, hastily closed the app and could not answer the question. Officers also noticed that Orozco was nervous and that the dashboard of the car “was no flush and bore toolmarks, suggesting someone previously pried it open.” Orozco eventually consented to a search, which uncovered more than $100,000 in cash in a secret compartment in the dashboard, which Orozco said did not belong to him. Orozco was arrested for the traffic violations and taken to the police station. There, during a search of his person, an officer “found a folded-up $100 bill in Orozco’s shoe, and as he unfolded it, five micro-SD cards fell out onto the floor” at which point Orozco “quickly scooped up two of the cards and shoved them into his mouth.” One was recovered, although “chewed and inoperable,” while the other was swallowed. Officers got warrants to search the remaining SD cards and the phone, eventually leading to the discovery of child pornography. Orozco was ultimately charged with possession of child pornography, unsuccessfully moved to suppress the images found on the SD cards and phone, found guilty, and was sentenced to 144 months in prison.

On appeal, the Fourth Circuit affirmed Orozco’s conviction. Orozco reiterated his argument that the evidence found on the SD cards and the phone should have been suppressed because the warrant used to search them was not sufficient. He first argued that the warrant did not sufficiently show that he was engaged in drug trafficking. The court disagreed, agreeing that while “cash is not contraband,” the fact that it was a large amount of money and was stored in a hidden compartment made “those innocent explanations seem unlikely.” In any event, the other facts showed that “the totality of these circumstances is more than enough to establish a ‘fair probability’ that Orozco was engaged in drug trafficking.” Second, Orozco argued that there was no basis for concluding that evidence of drug trafficking would be found on the SD cards and phone. As to the cards, the court concluded that Orozco’s attempted destruction of them when discovered “can be taken only as an attempt to hide something” and that “intentionally destroying an item before it can be examined would permit someone to believe the item is inculpatory.” As to the phone, the fact that Orozco was using the phone for navigation while transporting the money was “enough, without even considering Orozco’s attempt to destroy other electronic evidence,” to provide reason to believe there would be drug-related evidence on the phone.