United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.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.” Id.
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
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.
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.
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.
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.”
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
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. Williams' request to suppress evidence
discovered the search of the phone found on his person,
therefore, should be DENIED.
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) (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).
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)).
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. 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.
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.
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
argument that the phone and its contents 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.