Oh, the Places You Won't Go: Court Rejects Fair Use Argument

• Pages: 26-27
• Date: 01 January 2024
• Author: Michael Stefanilo Jr.
• Subject Matter: Civil Law

the Section’s The Woman Advocate

Committee. “However, the full context

of the questioning of the potential juror

should be considered, rather than sim-

ply one answer to a leading question,”

says deGruy.

Each Cell Phone

Component Requires

Probable Cause for

Search

By Katherine G . Vazquez, Litigation

News Contributing Editor

Evidence of probable cause is required

to search each category of content

on a criminal suspect’s cell phones.

One federal appellate court vacated a

defendant’s child pornography convic-

tion, ruling that photographs on the

defendant’s cell phones should have

been suppressed because while police

ocers had probable cause to search

for evidence of drug possession, they

lacked probable cause to search the

photographs for evidence of other

crimes. ABA Litigation Section leaders

highlight the importance of articulating

the reasons for the targeted search

of a cell phone when requesting a

warrant.

In United States v. Morton, the

defendant consented to a search of his

van after police ocers smelled mari-

juana during a trac stop. The ocers

found 3 cell phones, 16 ecstasy pills,

one small bag of marijuana, and a glass

pipe. They also discovered children’s

school supplies, a lollipop, 14 sex toys,

and 100 pairs of women’s underwear

in the vehicle. The ocers arrested the

defendant for drug possession.

Subsequently, the ocers obtained

search warrants for the cell phones’

contacts, call logs, and text messages,

as well as photographs “or multimedia

f‌iles in furtherance of narcotics track-

ing or possession.” After f‌inding child

pornography in the cell phones’ pho-

tographs, the ocers obtained a sec-

ond set of warrants to further search

the cell phones for child pornography,

which yielded 19,270 images of sexually

exploited minors. The government then

indicted the defendant for violation of

child pornography laws.

The defendant moved to suppress

the photo evidence, arguing that “the

adavits in support of the f‌irst set

of warrants failed to establish prob-

able cause to search for his additional

criminal drug activity.” The government

contended it had probable cause, but

if not, the good-faith exception to the

exclusionary rule applied. This excep-

tion “arises when an ocer’s reliance

on a defective search warrant is ‘objec-

tively reasonable.’” If it is, the evidence

obtained from the search will not be

excluded. The U.S. District Court for the

Northern District of Texas denied the

defendant’s motion to suppress.

On appeal, the U.S. Court of Appeals

for the Fifth Circuit reversed, conclud-

ing that, although the f‌irst set of war-

rants established probable cause “to

search the defendant’s contacts, call

logs, and text messages for evidence

of drug possession,” there was no

probable cause to search the photo-

graphs for evidence of drug tracking

because the small quantity of drugs

did not indicate that he was a drug

dealer. It reasoned that the ocers’

adavits did not create a “fair prob-

ability” that “evidence of the crime of

drug possession [would] be found in

the photographs on the defendant’s

cell phones,” and therefore, the govern-

ment’s “good-faith exception” did not

apply because the ocers’ reliance on

the defective warrants was objectively

unreasonable. The appellate court like-

wise held that the magistrate judge

lacked a “substantial basis” to f‌ind

probable cause to search the photo-

graphs’ “f‌ile cabinet.”

Finally, the court concluded that

the photographic evidence from the

second set of warrants was inadmis-

sible, explaining that using informa-

tion obtained from the photographs in

the f‌irst search “tainted the evidence

obtained as a result of [the] second

search, making it the unconstitutional

‘fruit of the poisonous tree.’”

“The decision strikes the right bal-

ance between protecting a defendant’s

Fourth Amendment right and ensur-

ing public safety because the adavit

was too overbroad, suggesting that the

ocers had probable cause to believe

there was drug tracking whenthe

evidence they seized only indicated

personal drug use,”observesCaroline

Rule, New York, NY, chair of the

Section’s Tax Crimes Subcommittee of

the Criminal Litigation Committee.

A cell phone has many com-

ponents of data, and “searching a

defendant’s mobile phone may be

more intrusive than searching his

homebecausea cell phone contains

more data and information than a

house would,” explainsWarrington

Parker, San Francisco, CA, cochair

of the Section’sCriminal Litigation

Committee.

Oh, the Places You

Won’t Go: Court

Rejects Fair Use

Argument

By Michael Stef anilo Jr., Litigation

News Contributing Editor

An attempted Star Trek-themed varia-

tion of a Dr. Seuss classic will not

“live long and prosper.” In Dr. Seuss

Enterprises, L.P. v. ComicMix, LLC, a

federal appellate court held that a

“mash-up” combining elements from

Star Trek and Dr. Seuss was not su-

ciently “transformative” and therefore

failed to satisfy the fair use doctrine in

violation of copyright law. According

to ABA Litigation Sectionleaders, this

case marks the importance of under-

standing the elements necessary for

a variation to be protected by the fair

use doctrine.

Dr. Seuss Enterprises, L.P. (Seuss)

sued ComicMix in the U.S. District

Court for the District of Southern

California, alleging copyright infringe-

ment of the children’s book Oh, the

Places You’ll Go! (Go!). The suit was

f‌iled after ComicMix produced a “mash-

up” of the Seuss version called Oh,

the Places You’ll Boldly Go! (Boldly!),

consisting of a combination of artis-

tic elements from both Seuss and Star

Tre k. The variation borrowed “liber-

ally—graphically and otherwise—from

Go! and other works by Dr. Seuss” and

used “Captain Kirk and his spaceship

Enterprise to tell readers that ‘life is an

adventure, but it will be tough.’”

ComicMix moved for summary judg-

ment, arguing that its mash-up was

protected by the fair use doctrine,

which permits the unlicenseduseof

WINTER 2024 • VO L. 49 NO. 2

26 | ABA LITIGATION SECTIO N

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