United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Janet F.
King's Report and Recommendation 
(“R&R”) on Defendant Daveon Brantley's
(“Brantley”) Motion to Suppress Evidence  and
Motion to Suppress Cell Tower Data . In the Motion to
Suppress Evidence, Brantley argues that a delay in securing a
warrant to search cell phones seized during a search incident
to arrest “rendered the search unconstitutional.”
( at 1). In the Motion to Suppress Cell Tower Data,
Brantley claims the data obtained under an order issued by a
magistrate judge under the Stored Communications Act, rather
than pursuant to a search warrant, was unconstitutional. The
Magistrate Judge found the search of the cell phones pursuant
to the warrant was not unreasonably delayed and she
recommended the Motion to Suppress Evidence be denied. The
Magistrate Judge found that the cell phone tower data was
obtained relying on an order issued by a magistrate judge
under the Stored Communications Act, 18 U.S.C. § 2703(d)
and the search of the phone did not require a search
warranted issued upon a finding of probable cause and the
reliance upon the order issued to secure the data was done in
good faith. Brantley did not file objections to the
and his co-defendant Amber Brinson were charged with
conspiracy to commit sex trafficking of a minor, in violation
of 18 U.S.C. § 1594(c) (Count One), sex trafficking of a
minor, in violation of 18 U.S.C. § 1591 (Count Two),
production of child pornography, in violation of 18 U.S.C.
§§ 2251(a) and (e) (Count Three), and distribution
of child pornography, in violation of 18 U.S.C. §§
2252(a)(2) and (b) (Count Four). (). Brantley was
formally arrested on the charges on March 13, 2017. In a
search apparently incident to his arrest,  cell phones were
seized from him. Sixteen (16) days later, on March 29, 2017,
the Government applied for a warrant to search the phones.
The warrant was issued on March 29, 2017.
Government also obtained cell tower location data for
Brantley's telephones for the period May 30, 2016, to
June 8, 2016. The information was obtained pursuant to an
order issued by a magistrate judge under the Stored
Communications Act, 18 U.S.C. § 2703(d).
STANDARD OF REVIEW
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Fed. R. Crim. P. 59; Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per
curiam). A district judge “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). This
requires that the district judge “give fresh
consideration to those issues to which specific objection has
been made by a party.” Jeffrey S. v. State Bd. of
Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)
(internal citations omitted). With respect to those findings
and recommendations to which a party has not asserted
objections, the Court must conduct a plain error review of
the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983). Brantley did not file objections to
the R&R and it is reviewed for plain error.
Cell phone search
Fourth Amendment provides that ‘[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated.'” United States v.
Barron-Soto, 820 F.3d 409, 415 (11th Cir. 2016) (quoting
U.S. Const. amend. IV). The Fourth Amendment generally
requires that a warrant be issued upon probable cause before
a search is conducted. See United States v. Laist,
702 F.3d 608, 613 (11th Cir. 2012). There are circumstances,
however, that justify a search without a warrant, including
searches incident to arrest. See United States v.
Robinson, 414 U.S. 218 (1973); Chimel v.
California, 395 U.S. 752 (1969). “[A] warrant is
generally required before . . . a search [of a cell phone],
even when a cell phone is seized incident to arrest.”
Riley v. California, 134 S.Ct. 2473, 2493 (2014).
seizure lawful at its inception can nevertheless violate the
Fourth Amendment because its manner of execution unreasonably
infringes possessory interests protected by the Fourth
Amendment's prohibition on unreasonable searches.”
United States v. Mitchell, 565 F.3d 1347, 1350 (11th
Cir. 2009) (quoting United States v. Jacobsen, 466
U.S. 109, 124 (1984)) (internal quotation marks omitted);
see also United States v. Vallimont, 378 F.
App'x 972, 975-76 (11th Cir. 2010) (same). Thus, an
initially lawful seizure may become “unconstitutional
if the police act with unreasonable delay in securing a
warrant.” Mitchell, 565 F.3d at 1350.
Brantley does not challenge the initial seizure of his
phones, and he does not challenge the grounds upon which the
warrant to search his phones was issued. Brantley argues the
delay between the seizure of the phones and the issuance of
the warrant was too long and thus the search pursuant to the
warrant was unconstitutional. The Court disagrees.
determining whether a delay is unreasonable, the court
considers, “on a case-by-case basis, ” “all
the facts and circumstances” presented. Id. at
1351. (citation and internal quotation marks omitted). The
Eleventh Circuit has “identified several factors highly
relevant to this inquiry: first, the significance of the
interference with the person's possessory interest, . . .
second, the duration of the delay, . . . third, whether or
not the person consented to the seizure, . . . and fourth,
the government's legitimate interest in holding the
property as evidence.” Laist, 702 F.3d at
613-14 (citations omitted). Applying these criteria here, the
Court concludes the delay was not unreasonable.
Interference with ...