Police Seizure of Cell Phone Unlawful but Seizure of Legal Papers by Court Clerk for Nefarious Reasons Allowed

II. Analysis

Mr. Crutchfield argues the warrantless seizure of his cell phone violated the Fourth Amendment because it was not supported by probable cause, and that all fruits of that initial seizure must be suppressed accordingly.

The Government responds that a temporary seizure of the phone pending issuance of a warrant was appropriate, because Mr. Crutchfield knew about the investigation and could have destroyed the evidence the phone contained.

(ECF No. 37 at 6.)

For the reasons given below, the Court finds the seizure of Mr. Crutchfield’s cell phone was unlawful and grants Mr. Crutchfield’s motion to suppress the evidence derived from that seizure.

A. The “Exigent Circumstances” Exception

The Fourth Amendment protects the “rights of the people to be secure in their persons, house, papers, and effects against unreasonable searches and seizures.”

Although the text of the Fourth Amendment does not specify when a warrant must be obtained prior to a search or seizure, courts have concluded that the warrantless seizure of property is per se unreasonable “unless it falls within a well-defined exception to the warrant requirement.”

United States v. Shrum, 59 F.4th 968, 972 (8th Cir. 2023) (quotation and citation omitted).

The only such exception the Government invokes here is that “where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, … the Fourth Amendment … permit[s] seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it ….’ ”

(ECF No. 37 at 4–5.) (quoting United States v. Place, 462 U.S. 696, 701 (1983)).

Thus, in order to examine the Government’s justification for the seizure of Mr. Crutchfield’s cell phone, the Court must first evaluate whether there was probable cause to believe the phone contained contraband or evidence of a crime.

Probable cause “exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in that particular place.”

United States v. Stephen, 984 F.3d 625, 631 (8th Cir. 2021), reh’g denied (Feb. 5, 2021), cert. denied, 142 S. Ct. 270 (2021) (quotation omitted).

To establish probable cause to seize a cell phone, there must be some articulable specific circumstances leading the seizing officer to conclude there is a fair probability that the phone contains evidence of a crime.

See, e.g., Shrum, 59 F.4th at 972 (finding probable cause for temporary seizure of a cell phone when officers saw text messages between the owner of the cell phone and a minor indicating they engaged in sexual activity as recently as the night before);

Stephen, 984 F.3d at 631 (finding probable cause for warrantless seizure of USB drive when a third party brought the device to the police and indicated he saw child pornography on the USB drive);

United States v. Clutter, 674 F.3d 980, 982–83, 985 (8th Cir. 2013) (finding probable cause for the warrantless seizure of a computer when officers, in a valid previous search of the suspect’s other disc drives, found child pornography on those drives).

Mere ownership or possession of a cell phone does not give law enforcement probable cause to seize the property.

See United States v. Conley, 342 F. Supp. 3d 247, 266 (D. Conn. 2018) (citing United States v. Irizarry, 509 F. Supp. 2d 198, 209 (E.D.N.Y. 2007)).

[LIT COMMENT: REALLY, YOU HAVE TO RELY UPON OUT OF STATE OPINIONS MAGISTRATE JUDGE FOSTER]

In this case, the Government asserts probable cause to seize Mr. Crutchfield’s cell phone based on little more than his mere ownership of the phone.

At the time of the seizure, the officers had no previous history with Mr. Crutchfield.

The only information they had about him was the information acquired during his arrest and search of the vehicle, and the information they obtained from running his license plate—that he was driving on a revoked license and had no prior felonies.

None of that information linked his possession of the marijuana or the gun in the car, or any other criminal activity, to his cell phone.

And although Officer Miller testified he believed the phone might contain a photo of the gun, he bluntly admitted that belief was purely speculative.

Officer Miller’s speculation plainly is not sufficient to establish probable cause.

See United States v. Waldrip, 4:18-cv-163-RGE-CFB-2, 2019 WL 13143479, at *5–*8 (S.D. Iowa April 7, 2019) (finding warrantless seizure of a cell phone at an investigatory stop unlawful when the officer who seized the cell phone “could not recall the circumstances of the cell phone’s use” and when “the sole officer to recall seeing the cell phone during the investigatory stop … only testified that he saw the cell phone on the dashboard of the car[,]” as “[t]he record lack[ed] any indication that [Defendant] used his cell phone for any purpose, let alone for” criminal activity).

The most compelling argument the government proffers as grounds for seizing the phone is the claim that Mr. Crutchfield gave his girlfriend the phone after his arrest, since a suspect’s attempt to conceal property that otherwise would be subject to seizure incident to arrest could be viewed as obstructive.

But this claim is not supported by the record.

In making this claim, the Government relies on the declaration of Sergeant Urbaniak, in which she stated:

“Officers handcuffed [Mr. Crutchfield] and detained him in the squad car. [Mr. Crutchfield] handed his cell phone to [his girlfriend] who was the front passenger ….”

(Gov. Ex. 4 at 2.)

The declaration does not actually state that that he handed the phone to his girlfriend after his arrest, and any such claim would lack apparent credibility since it is difficult to imagine how Mr. Crutchfield would have the capacity to hand his phone to her while handcuffed with his hands behind his back in the back of a squad car.

Furthermore, Sergeant Urbaniak—who was not present during Mr. Crutchfield’s arrest—based her declaration on Officer Miller’s report.

Officer Miller’s direct testimony is thus the best evidence of what actually happened, and he explicitly denied any knowledge of how or when Mr. Crutchfield’s girlfriend acquired the phone. The Court rejects the Government’s claim that Mr. Crutchfield gave her the phone after his arrest for these reasons.

The only other evidence proffered as a justification for the seizure is that Mr. Crutchfield told a friend he did not want the police to take the phone.

Depending on exactly what he said and how he said it—facts that are not in the record—this fact alone might be enough to arouse reasonable suspicion that the phone contained something inculpatory.[2]

Any parent of a small child knows it is best to wary when the child pointedly asks the parent not to look at something. But reasonable suspicion is inadequate to justify the seizure at issue here.

The Supreme Court held in Place that under certain circumstances the temporary warrantless seizure of a container may be sustained based on reasonable suspicion that its contents include contraband or evidence.

See 462 U.S. at 706 (holding that under Terry principles, an officer’s reasonable belief that a traveler was carrying luggage containing narcotics would permit the officer to detain the luggage briefly “to investigate the circumstances that aroused his suspicion, provided the investigative detention is properly limited in scope.”).

The Court emphasized, however, that any such investigative detention must be brief.

(Id. at 708-09) (“[T]he brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion.”)

Here, the officers seized Mr. Crutchfield’s cell phone for a period of over 20 hours before they obtained a warrant to search it.

(See Gov. Ex. 4 at 2, 5.)

Removing the phone from Mr. Crutchfield’s control for such a lengthy period does not satisfy the narrow scope for an investigative detention as recognized in Place.

462 U.S. at 709-10 (finding warrantless seizure of luggage for a prolonged period of over 90 minutes based solely on reasonable suspicion was unreasonable); see also Shrum, 59 F.4th at 971–72 (requiring probable cause for a warrantless seizure of a cell phone when officers obtained a search warrant the day after the initial seizure).

Furthermore, the fact that the container at issue in this case is a cell phone and not a piece of luggage entitles it to even greater protection than that at issue in Place.

See Riley v. California, 573 U.S. 373, 399 (2014) (rejecting the application of a reasonable suspicion standard to a warrantless search of a cell phone as “[i]t would be a particularly inexperienced or unimaginative law enforcement officer who could not come up with several reasons to suppose evidence of just about any crime could be found on a cell phone”);

Robbins v. City of Des Moines, 984 F.3d 673, 681 (8th Cir. 2021) (distinguishing the Fourth Amendment interest in a cell phone from that of luggage, the container at issue in Place, by asserting that “it’s no stretch to hazard that a modern-day traveler would likely rather arrive in a strange place without her luggage than without her phone.”) (quoting United States v. Babcock, 924 F.3d 1180, 1190–91 (11th Cir. 2019)).

The Court concludes on these grounds that the initial seizure of Mr. Crutchfield’s cell phone was not supported by probable cause.

The “exigent circumstances” exception on which the Government relies is inapplicable for this reason. See Waldrip, 2019 WL 13143479, at *5-6 (holding exigent circumstances exception was inapplicable in the absence of probable cause to seize defendant’s cell phone).

Since the Government does not invoke any other exception to the search warrant requirement, the Court concludes that the seizure violated Mr. Crutchfield’s Fourth Amendment rights.

B. The Exclusionary Rule

“[T]he exclusionary rule encompasses both the ‘primary evidence obtained as a direct result of an illegal search or seizure’ and … ‘evidence later discovered and found to be derivate of an illegality,’ the so-called ‘fruit of the poisonous tree.’ ”

Utah v. Strieff, 579 U.S. 232, 237 (2016) (quoting Segura v. United States, 468 U.S. 796, 804 (1984)).

“The initial burden of establishing the factual nexus between the constitutional violation and the challenged evidence is on the defendant.”

United States v. Miller, 11 F.4th 944, 954 (8th Cir. 2021) (quotation and citation omitted).

“[B]ut for causality is only a necessary, not sufficient, condition for suppression.”

Hudson v. Michigan, 547 U.S. 586, 592 (2006).

The principal question in determining the scope of the exclusionary rule is whether police obtained the evidence “by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

Id. (quotation and citation omitted).

“[O]nce the defendant comes forward with specific evidence demonstrating taint, the ultimate burden of persuasion to show the evidence is untainted lies with the government.”

Miller, 11 F.4th at 954. (quotation and citation omitted).

The government can establish a lack of taint by meeting one of several recognized exceptions to the exclusionary rule, including the independent source doctrine, under which the evidence is derived from a lawful and independent source; the inevitable discovery doctrine, under which the evidence would have been discovered even without the unconstitutional source; and the attenuation doctrine, under which the connection between police misconduct and the evidence is remote or interrupted by an intervening circumstance.

See Strieff, 579 U.S. at 238; see also, e.g., Hamilton v. Nix, 809 F.2d 463, 465 (8th Cir. 1987) (en banc).

Mr. Crutchfield argues that because the initial seizure of his cell phone was unlawful, both the first and second search warrants and the evidence obtained from them are fruits of an illegal seizure that also must be suppressed.

(ECF No. 39 at 8.)

The Court agrees.

The cell phone searches were directly derived from the impermissible seizure since law enforcement’s possession of the phone was necessary for the searches to occur.

The Court finds Mr. Crutchfield has met his burden to establish a nexus between the unlawful warrantless seizure of his cell phone and the evidence obtained as a result of the two search warrants.

The burden therefore shifts to the Government to show that this evidence is untainted by the unlawful seizure.

It has not met this burden.

The Government points to no intervening circumstance or independent source from which it might have obtained the information on Mr. Crutchfield’s cell phone.

The inevitable discovery doctrine is also inapplicable, since it is far from clear that the officers could have located the phone if they had waited to obtain a warrant to seize it, or that any such warrant could have described Mr. Crutchfield’s cell phone with sufficient particularity.

See United States v. Gleich, 397 F.3d 608, 611 (8th Cir. 2005) (“To satisfy the particularity requirement of the Fourth Amendment, the items to be seized and the places to be searched must be described with sufficient particularity as to enable the searcher to locate and identify the places and items with reasonable effort and to avoid mistakenly searching the wrong places or seizing the wrong items.”).

See Miller, 11 F.4th at 954.

The Government has neither advanced any argument nor proffered any evidence to suggest the evidence derived from the searches conducted pursuant to the warrants is untainted by the initial unconstitutional seizure of the phone.

Moreover, the second search warrant is additionally tainted because it was predicated on information derived from the first search of the phone’s contents.

(See Tr. at 45–47.)

The Court accordingly recommends suppression of information derived from both searches.[3]

See Waldrip, 2019 WL 13143479, at *8 (suppressing all evidence obtained from a warrant to search the defendant’s cell phone upon finding the initial warrantless seizure of the cell phone unlawful).

RECOMMENDATION

Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED THAT:

1. Mr. Crutchfield’s Motion to Suppress Evidence Obtained as a Result of Search and Seizure (ECF No. [22]) be GRANTED;

and

2. Mr. Crutchfield’s Motion to Suppress Statements, Admission, and Answers (ECF No. [23]) be DENIED.

NOTICE

Filing Objections: This Report and Recommendation is not an order or judgment of the District Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals.

Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate judge’s proposed finding and recommendations within 14 days after being served a copy” of the Report and Recommendation.

A party may respond to those objections within 14 days after being served a copy of the objections.

See Local Rule 72.2(b)(2).

All objections and responses must comply with the word or line limits set forth in Local Rule 72.2(c).