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United States v. Williams

United States District Court, S.D. Georgia, Savannah Division

February 27, 2019

UNITED STATES OF AMERICA
v.
HERMAN F. WILLIAMS Defendant.

          REPORT AND RECOMMENDATION

          CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE

         Defendant Herman Williams is indicted on one count of conspiracy to possess with intent to distribute and to distribute controlled substances (cocaine and marijuana), in violation of 21 U.S.C. § 846. Doc. 1 at 1-2. According to the Government, the investigation which led to this indictment stretches back as far as 2012. Doc. 278 at 2. In 2018, it resulted in the seizure of, among other evidence, 25 kilograms of cocaine and more than $300, 000. Doc. 279 at 2. Williams is allegedly a principal in this conspiracy. Doc. 278 at 2 (alleging that the “narcotics network [was] led by Omar Griffin and Herman Williams”). Before the Court are Williams' motions to suppress evidence from seized cell phones (doc. 257) and cellphone account data (doc. 260). On January 24, 2019, the Court held an evidentiary hearing on Williams' motions.

         First, Williams seeks to suppress the searches of two cell phones; one that he had on his person when he was arrested and one that was discovered in the car in which he fled immediately prior to his arrest. See doc. 257 at 3. Although both devices were seized in March 2018, no warrant to search their contents was presented until four months later, in July. Id. He contends that “agents' four and a half month delay in obtaining a warrant to search [the] phones was clearly unreasonable, and warrants suppression of the phones and any and all evidence obtained therefrom.” Id. The Government opposes. Doc. 278.

         Williams' second motion seeks suppression of evidence obtained through state-court authorizations of the collection of, among other data, cell site location information. Doc. 260 at 7. He argues further that, if the collection of the data was illegal, then various other evidence becomes “fruit of the poisonous tree.” See doc. 301 at 16-17. The Government challenges Williams' standing to seek suppression of any information discovered through the authorizations. Doc. 279 at 5-12. Alternatively, it argues that the authorizations were based on probable cause (making them de facto warrants). Finally, the Government contends that even if probable cause was lacking, agents acted in good faith reliance on the authorizations' apparent validity. Doc. 279 at 15-16.

         I. BACKGROUND

         The events leading to Williams' arrest began on March 5, 2018. Doc. 257 at 2. He and several co-defendants were surveilled at a local restaurant and motel. Id. As one of his co-defendants left, police initiated a traffic stop and discovered 25 kilograms of cocaine. Id. Later, police attempted a traffic stop of Williams' car and, as his brief describes it, “following a chase” he was arrested. Id. at 3. The Government's brief and witnesses' testimony flesh out the details. After a marked police vehicle attempted a traffic stop, Williams “ran through two stop signs, while driving at a high rate of speed . . ., [he] crashed into a residential yard, immediately got out of the vehicle and took off running.” Doc. 278 at 4.[1]Officers pursued him on foot and apprehended him. Id. His passenger also fled and remains a fugitive. Id. In a search incident to Williams' arrest, police discovered a “Cricket ZTE cellphone.”[2] Id.

         Chatham-Savannah Counter Narcotics Team (CNT) Officer Brett Minton (who physically apprehended Williams after the foot chase), testified that he discovered the phone in Williams' possession after his arrest, but he did not seize it at that time. In fact, he never seized the phone. After the search confirmed Williams was unarmed, his various items of personal property were returned to him. Minton was not sure exactly when or by whom the phone was taken into police custody, but it may have remained with Williams until he was processed by jail staff. Williams has remained in police custody since his arrest.

         CNT Officer Gary Woodruff also testified at the hearing. He assisted in securing the car Williams was driving. He was alerted to the pursuit by radio communications and discovered the black Toyota-he was unsure of the model-unlocked, with its headlights on and engine running. He impounded the car. At the hearing, and based on the helicopter video, he identified the car as the same one that Officer Minton observed Williams drive and from which he then fled.

         After Williams' arrest, a canine alerted to the presence of narcotics in the vehicle. Doc. 278 at 4. The car was impounded and a state search warrant was obtained for its contents. Id. Upon executing that warrant, police discovered a “grey LG Verizon cellphone.” Id. Williams does not challenge the propriety of the initial seizure of either device. Rather, he argues that the search of the devices' contents was unreasonable, given that the warrant and subsequent search came more than four months after their seizure. Doc. 257 at 3-4.

         II. PHONE SEARCHES

         It is clear that “‘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 seizures.'” United States v. Laist, 702 F.3d 608, 613 (11th Cir. 2012) (quoting United States v. Jacobsen, 466 U.S. 109, 124 (1984)). One way post-seizure police conduct can render an otherwise reasonable seizure unreasonable is delay. Id. However, such cases are “often difficult” and require a balancing of “‘privacy-related and law enforcement-related concerns'” to determine reasonableness. Id. (quoting Illinois v. McArthur, 531 U.S. 326, 331 (2001)). Such a balancing requires the Court to “evaluate the totality of the circumstances presented by each case.” Id.

         Implicit in any Fourth-Amendment based challenge, and explicit in the factors considered to determine whether an otherwise reasonable search is rendered unreasonable by law enforcement delay, is the question of the defendant's interest in the object searched. After all, “Fourth Amendment rights are personal rights which . . . may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). Thus, “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.” Id. The principle announced in Rakas has come to be known, for better or worse, as Fourth Amendment “standing.”[3]

         The factors relevant to determine whether a delay renders a search unreasonable include, “the significance of the interference with the person's possessory interest” in the item seized. Laist, 702 F.3d at 614 (citing United States v. Mitchell, 565 F.3d 1347, 1351 (11th Cir. 2009)). The possessory-interest factor is at its nadir when, as here, the defendant is prevented from resuming his possession as a result of his detention. See United States v. Sparks, 806 F.3d 1323, 1340 (11th Cir. 2015) (“[I]f the person from whom the item was seized lacks a cognizable possessory interest in the item, that person's Fourth Amendment rights are not violated by even a lengthy period between seizure and the procurement of a warrant.”); United States v. Sullivan, 797 F.3d 623, 633-34 (9th Cir. 2015) (explaining that the intrusion on detained defendant's possessory interest in seized computer was “minimal” because “[w]here individuals are incarcerated and cannot make use of seized property, their possessory interest in that property is reduced.” (citing Seguara v. United States, 468 U.S. 796, 813 (1984) (Burger, C.J.) (plurality opinion); United States v. Clutter, 674 F.3d 980, 984-85 (8th Cir. 2012)); United States v. Shaw, 531 Fed.Appx. 946, 949 (11th Cir. 2013) (distinguishing cases suppressing evidence based on unreasonably extended seizure because, among other reasons, the defendant “was in custody throughout the contested delay and concedes he could not have physically possessed the phones”)).[4]

         At the hearing, Williams conceded he lacked Fourth Amendment standing as to the phone that was discovered on his person. He maintained his standing, however, as to the phone that was discovered in the car. Given that Fourth Amendment standing is not jurisdictional, the Court assumes, without deciding, that Williams has standing to challenge the search of that phone. He has not, however, established his standing to challenge the search of the phone he was carrying when he was arrested.[5] Williams' request to suppress evidence discovered the search of the phone found on his person, therefore, should be DENIED.

         Assuming, without deciding, that Williams had a sufficient possessory interest to challenge the search of the phone discovered in the car, the Government has established that he abandoned it. “Fourth Amendment claims do not lie when the defendant has abandoned the searched property.” United States v. Sparks, 806 F.3d 1323, 1341 (11th Cir. 2015)[6] (citing United States v. Ramos, 12 F.3d 1019, 1024 (11th Cir. 1994); United States v. O'Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985)). The determination of abandonment, while not dependent on the technicalities of property law, is objective, and “based primarily on the prior possessor's intent, as discerned from statements, acts, and other facts.” Id. at 1342. “The critical inquiry when determining whether an abandonment has occurred is ‘whether the person prejudiced . . . voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question.'” Id. (quoting Ramos, 12 F.3d at 1022). Particularly relevant here, “‘police pursuit . . . does not itself render abandonment involuntary.'” United States v. Jefferson, 451 Fed.Appx. 833, 834 (11th Cir. 2011) (quoting United States v. Colbert, 474 F.2d 174 (5th Cir. 1973)); see also United States v. Falsey, 566 Fed.Appx. 864, 867(11th Cir. 2014) (finding mistaken belief that he was being pursued by police did not render the abandonment of a car involuntary and collecting cases on abandonment during flight from police).

         The facts of United States v. Falsey are very similar to the facts here. Falsey, mistakenly believing he was being pursued by police, left his car in a parking lot, with the engine off, but with the keys on the floorboard and the doors unlocked. Falsey, 566 Fed.Appx. at 865. A witness reported seeing him flee the car on foot. Id. Upon impounding the car and conducting an inventory search, police discovered a locked safe in the trunk, which contained contraband. Id. The Court of Appeals found that Falsey's “‘. . . conduct is transparently an abandonment of the tight grip of ownership and reliance solely on the feeble hope of reaquisition.'” Id. at 867 (quoting United States v. Edwards, 441 F.2d 749, 826 (5th Cir. 1971)).

         The facts supporting Williams' abandonment of his car, and the phone it contained, are, if anything, even more indicative of abandonment than the facts making Falsey's abandonment “transparent.” Minton testified that, after crashing the car he was driving into a fence, Williams fled on foot. Woodruff testified that he found the car with its engine running (obviously, with the keys still in it) and its doors unlocked and open. Once the car was impounded, and a warrant procured, the phone was discovered. Unlike the safe in the trunk of Falsey's car, the phone's contents were completely unsecured.[7] Based on those uncontroverted facts, Williams clearly abandoned any possessory interest he may have had in the phone and its contents. He, thus, lacks (assuming he ever had) the minimum interest necessary to make a Fourth Amendment challenge of law enforcement's search of the phone's contents. “[I]f the person from whom the item was seized lacks a cognizable possessory interest in the item [i.e., because he has voluntarily abandoned it], that person's Fourth Amendment rights are not violated by even a lengthy period between seizure and the procurement of a warrant. That is so because any delay- no matter the length-cannot interfere with possessory rights that do not exist.” Sparks, 806 F.3d at 1340.

         Finally, even assuming that Williams had retained a sufficient possessory interest in the phone-despite his incarceration and his abandonment-he has not marshalled sufficient evidence that the balance of the factors tips in his favor. The factors relevant to determining an unreasonable delay include, unexhaustively: (1) “the significance of the interference with the person's possessory interest, ” (2) “the duration of the delay, ” (3) “whether or not the person consented to the seizure, ” (4) “the government's legitimate interest in holding the property as evidence, ” and (5) whether the police diligently pursued their investigation, including the nature and complexity of the investigation, whether law enforcement personnel had to be diverted to another case, and the quality of the warrant application and the time necessary to prepare it. Laist, 702 F.3d at 613-14.

         To be sure, Williams is correct to point out that cell phones, like computers, may involve a heightened possessory interest. Doc. 257 at 6-7. However, as discussed at length above, there are factual circumstances that call the existence of his possessory interest into question. Were it necessary, the Court might be inclined to give him the benefit of the duration factor; although the Government is correct that delays of similar length have been accepted as reasonable, far shorter delays have also been regarded as unreasonable. Compare doc. 257 at 7 (collecting cases), with doc. 278 at 15 (same). Williams, however, offers nothing on the application of the other factors. He simply asserts, without any explanation or support, that “[t]he agent's conduct in this case simply cannot be held to be diligent . . . .” His implication appears to be that the very length of the delay, alone, should be dispositive, but none of the cases he cites support that conclusion. See United States v. Uu, 293 F.Supp.3d 1209, 1213 (D. Haw. 2017) (“There is no bright line past which a delay becomes unreasonable.”); United States v. Escobar, 2016 WL 3676176 at * 4 (D. Minn. July 7, 2016) (“there is no ‘bright line past which a delay becomes unreasonable.'” (quoting United States v. Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012)).

         Williams' argument that the phone and its contents[8] should be suppressed, then, boils down to the claims that (1) cell phones are particularly personal possessions and (2) law enforcement did not seek a warrant to search the devices for several months after their seizure. That's simply not enough. See, e.g., United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985) (“A motion to suppress must in every critical respect be sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented.” (citation omitted)). Accordingly, Williams' motion to suppress any evidence found during officers' search of the phone found in the car should be DENIED. Doc. 257.

         III. ELECTRONIC ...


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