Controversial cloud-based search warrant upheld in 2020 Florida poker-game robbery

impressionistic picture of a poker-game robber using smartphone to move data to the cloud Dall-E
Haley Hintze Author Photo
Haley Hintze
Posted on: October 30, 2023 14:11 PDT

The United States 11th Circuit of Appeals has upheld the legality of a controversial search warrant that added extra charges to the coordinator of an armed robbery at a 2020 Florida poker game. Kevin Antwon McCall, of Pompano Beach, was convicted of coordinating the robbery of a game in April 2020 in which he played and lost money, then called two masked accomplices who stormed into the game and robbed the other four players.

McCall, however, was also convicted of another charge, which was not directly a part of the robbery: possession of a weapon by a convicted felon. After arresting McCall and seizing his locked phone, investigators sought and received a search warrant to have all data from his phone's account searched for information about the robbery and the masked accomplices, whom McCall declined to identity.

Investigators found something else, however: a photo of McCall posing with a 9mm handgun. McCall's defense moved to have the evidence suppressed on the grounds that the search was invalid, as the last cloud backup occurred 12 hours prior to the robbery and the search warrant was essentially unlimited in time range and scope and was therefore unconstitutionally vague.

The presiding judge ruled that the initial search warrant was indeed invalid as initially granted, but allowed the photo into evidence anyway as a "good faith" objection. The court asserted that the warrant would have been granted if correctly framed, and that the investigators had sufficient reason to believe that the robbery had been planned in advance and that the accomplices might have been identified, despite the 12-hour backup between the last prior backup and the calls made by McCall at the poker game.

Appellate opinion provides summary of armed robbery

The case received initial coverage in the South Florida Sun-Sentinel, which covers the greater Miami and Fort Lauderdale areas. The robbery occurred at about 1 am on April 12, 2020, at a Pompano Beach home, where the McCall, then 35, was agitated at losing in the game and began "frantically" using his phone to contact someone, presumably his masked accomplices.

After his arrest and conviction, McCall was sentenced to 27 months in prison but appealed the search of his smartphone's data. That appellate ruling was issued on Friday. As part of the published opinion, the appellate court also offered a summary of the 2020 robbery:

Around midnight on April 11, 2020, McCall was playing poker with four other men at a private residence. As the poker game progressed, McCall began losing large sums of money. Becoming increasingly frustrated with his losses, he “made threats to do something about it.” The group saw McCall “frantically using his cell phone to make calls/texts to unknown persons,” and he eventually “received a phone call and stepped outside,” explaining that “he needed to take care of something.”

Soon after, there was a knock at the door. One of the poker players saw McCall standing outside. But, when he opened the door for McCall, two masked men wielding a rifle and a handgun stormed inside. They ordered everyone to the ground and grabbed the cell phones and cash on the poker table. The masked men shot two of the poker players and escaped with the cash and cell phones.

The two players who suffered wounds were not severely injured, and McCall was arrested on April 14, 2020, on two counts of attempted felony murder and four counts of armed robbery.

Battle over cel phone search ensues

The case progressed into a precedent-setting battle over the legality of cloud-based searches for possibly incriminating data of a historical nature, as investigators sought to apprehend everyone involved in the robbery. McCall's defense raised three primary arguments on appeal, but even though the 11th Circuit court agreed with some of those arguments, it nonetheless agreed with prosecutors that there was reasonable cause to believe the robbery was premeditated, even if investigators failed to link the data obtained from McCall's phone-service provider to the other robbers.

"Although Fourth Amendment standards are largely settled," the appellate court stated, "their application to developing areas of technology is not. Like judges, law enforcement officers operating in good faith may struggle to apply existing standards to new circumstances. That is where the exclusionary rule’s good faith exception comes in."

The court also opined that there may always be a gap between technology and law enforcement's full understanding of it. "[I]t’s worth noting at the outset that technology moves quickly, the law moves slowly, and the combination can leave law enforcement officers with little insight on how to investigate a cloud account."

Later, in explaining the ruling's rationale, the court stated, "We need not decide whether the iCloud warrant violated the Fourth Amendment. Even if it did, the good faith exception applies to close calls and threshold cases."

Image generated via DALL-E