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United States v. Brantley

United States District Court, N.D. Georgia, Atlanta Division

December 4, 2017

UNITED STATES OF AMERICA,
v.
DAVEON BRANTLEY, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Magistrate Judge Janet F. King's Report and Recommendation [62] (“R&R”) on Defendant Daveon Brantley's (“Brantley”) Motion to Suppress Evidence [36] and Motion to Suppress Cell Tower Data [51]. 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.” ([36] 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 R&R.[1]

         I. INTRODUCTION

         Brantley 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). ([39]). Brantley was formally arrested on the charges on March 13, 2017. In a search apparently incident to his arrest, [2] 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.[3]

         The 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).

         II. STANDARD OF REVIEW

         After 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.

         III. DISCUSSION

         A. Cell phone search

         “The 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).

         “[A] 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.

         Here, 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.

         In 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.

         1. Interference with ...


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