Appellate Circuit

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

4th Amendment protects people’s rights to be secure in their persons, house, papers, and effects against unreasonable searches and seizures.

United States v. Crutchfield

(0:22-cr-00269)

District Court, D. Minnesota, Magistrate Judge Dolce Foster

OCT 11, 2022 | REPUBLISHED BY LIT: JUL 18, 2023
EDITORIAL

Joanna Burke lived in Harare, Zimbabwe for many years with her family, and witnessed in person it’s independence in a downtown celebration. Yes, as a white woman she mingled amongst thousands of blacks who she lived in harmony with for many, many years as she witnessed a new dawn in the city known as Salisbury in what was a country called Rhodesia.

Joanna has also lived in a place close to the Magistrate Judge Foster’s heart, Liberia, where she would choose to leave after warning fellow expats of the looming civil war. To be frank, many of those expats laughed and stayed claiming that her assertions were frivolous. But both she and her British Paratrooper husband’s instincts and experience in Rhodesia, Nigeria and the Gulf States meant they knew that Monrovia was about to experience a horrible war.

In America today, the black community, most of whom have never set foot outside of their state let alone visit Africa are being allowed to make race an issue, when the color of your skin should not be an issue. The real issue is poverty and education, and the lack of the United States to focus on it’s people rather than their own corrupt wallets.

Sadly, today this race division is being manifested by the United States Government as another weapon to control the people, but they are too blinkered to see what is happening as the Government and their employees steal every asset that citizens own.

Joanna Burke has traveled the world and thought she had seen the worst in government and corruption which materially impacted the lives of citizens – until she made a fateful decision with her husband to settle in America. It’s run by dictators who are worse than the worst, and the majority of them wear executioner-style black robes.

Order on Motion for Continuance

 Defendant


Maurrae Stephen Crutchfield

REPRESENTED BY

Douglas Olson

  (612) 664-5858
Fax: (612) 664-5850

Office of the Federal Defender
300 S 4th St
Ste 107
Minneapolis, MN 55415

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

Katherian D Roe

  (612) 664-5858
Fax: (612) 664-5850

Office of the Federal Defender
300 S 4th St
Ste 107
Mpls, MN 55415

TERMINATED: 10/25/2022 (Oct. 25, 2022)

Description Disposition
Pending Count 18:922(o)(1) and 924(a)(2) UNLAWFUL POSSESSION OF A MACHINEGUN(1) None
Complaint None None

 

 

 Plaintiff


USA

REPRESENTED BY

Joseph Scott Teirab

  (612) 664-5636

ATTORNEY TO BE NOTICED

LEAD ATTORNEY 

Dulce Foster ’98 Sworn in as U.S. Magistrate Judge for the District of Minnesota

OCTOBER 12, 2022

Dulce Foster ’98 was recently sworn in as a U.S. Magistrate Judge for the District of Minnesota.

On Aug. 31, Chief Judge Patrick J. Schiltz administered the oath of office to Foster at the Diana E. Murphy United States Courthouse in Minneapolis.

Before becoming a U.S. magistrate judge, Foster was a shareholder and former chair of the White Collar and Regulatory Defense Group at Fredrikson & Byron. During her tenure at Fredrikson, she litigated complex False Claims Act and civil business disputes, defended white collar criminal cases, and served as a Criminal Justice Act panel attorney. Foster’s practice also included managing internal and government investigations, developing compliance programs, and conducting anti-corruption due diligence for multi-national corporations.

Foster was the president of the Fredrikson & Byron charitable Foundation, an advisory board member of Children of Incarcerated Caregivers, treasurer of the U.S. District Court’s History Committee, and a member of the Law Firm Antiracism Alliance.

She is a former executive board member of the Federal Bar Association’s Minnesota Chapter and former co-chair of its Diversity, Education, and Prisoner Transportation Project Committees.

Foster previously served on the Minnesota Law Review Alumni Board, the Loan Repayment Assistance Program Board, U.S. District Court, District of the Federal Practice Committee of the U.S. Minnesota District Court, and the MSBA Criminal Law Accreditation Committee.

Foster devoted significant time doing pro bono work, representing plaintiffs in civil rights and domestic abuse cases, defending indigent clients in criminal cases, and helping victims of torture obtain political asylum in the United States.

She has volunteered with the Advocates for Human Rights for many years, including work in Nepal to support a school for low-income children and work in Liberia with the Liberian Truth & Reconciliation Commission.

Before joining Fredrikson & Byron in 2000, Foster served as a law clerk to U.S. District Court Judge John R. Tunheim ’80.

U.S. District Court
U.S. District of Minnesota (DMN)
CIVIL DOCKET FOR CASE #: 0:23-cv-01119-WMW-DJF

Burke v. PHH Mortgage Corporation et al
Assigned to: Judge Wilhelmina M. Wright
Referred to: Magistrate Judge Dulce J. Foster
Cause: 42:1983 Civil Rights Act
Date Filed: 04/19/2023
Jury Demand: None
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: Federal Question

 

Date Filed # Docket Text
07/14/2023 8 First MOTION ADVANCE APPROVAL OF PROCESS OF SERVICE COSTS AND EXTENSION OF TIME TO SERVE DEFENDANTS filed by Joanna Burke. (Burke, Joanna) (Entered: 07/14/2023)
07/17/2023 9 ORDER TO SHOW CAUSE. Show Cause Response due by 8/16/2023. Signed by Magistrate Judge Dulce J. Foster on 7/17/2023. (JC) (Entered: 07/17/2023)
07/17/2023 10 (Text-Only) Order: In her 8 Motion for Advance Approval of Process of Service Costs and Extension of Time to Serve Defendant, Plaintiff seeks an order for prepayment of service costs, and also seeks a 90-day extension of the time to serve Defendants. The Court DENIES the Motion IN PART. Fed. R. Civ. P. 4(d)(2) provides for the imposition of expenses “later incurred in making service” when a defendant refuses to waive service, but it does not allow for prepayment of service costs as Plaintiff requests. Plaintiff’s request for prepayment of service costs is DENIED accordingly. Since the Defendants have refused to waive service, Plaintiff must serve the Complaint. She may have until July 31, 2023 to properly serve the Summonses and Complaint. Ordered by Magistrate Judge Dulce J. Foster on 7/17/2023. (JC) (Entered: 07/17/2023)
07/21/2023 11 DOCUMENT FILED IN ERROR. REFILED, SEE 12 //First MOTION to Certify Interlocutory Appeal filed by Joanna Burke. (Attachments: # 1 Brief in Support, # 2 Proposed Order)(Burke, Joanna) Modified text on 7/24/2023 (ACH). (Entered: 07/21/2023)
07/21/2023 12 Amended MOTION to Certify Interlocutory Appeal (corrected certificate of service date) filed by Joanna Burke. (Attachments: DOCUMENT FILED IN ERROR//# 1 Brief in Support (corrected dates re service), DOCUMENT FILED IN ERROR//# 2 Proposed Order)(Burke, Joanna) Modified text on 7/24/2023 (ACH). (Entered: 07/21/2023)
07/26/2023 13 BRIEF re 12 Amended MOTION to Certify Interlocutory Appeal (corrected certificate of service date) filed by Joanna Burke.(Burke, Joanna) (Entered: 07/26/2023)
07/26/2023 14 PROPOSED ORDER TO JUDGE re 12 Amended MOTION to Certify Interlocutory Appeal (corrected certificate of service date) filed by Joanna Burke.(Burke, Joanna) (Entered: 07/26/2023)

 


 

PACER Service Center
Transaction Receipt
08/12/2023 11:01:46

United States of America, Plaintiff,
v.
Maurrae Stephen Crutchfield, Defendant

Case No. 22-cr-269 (PJS/DJF)

United States District Court, D. Minnesota

JUN 5, 2023 | REPUBLISHED BY LIT: JUN 6, 2023

Filed March 21, 2023

Foster, Dulce J., United States Magistrate Judge

REPORT AND RECOMMENDATION

This matter is before the Court on Defendant Maurrae Stephen Crutchfield’s Motion to Suppress Evidence Obtained as a Result of Search and Seizure (“Motion to Suppress Evidence”) (ECF No. 22).[1] Mr. Crutchfield argues the warrantless seizure of his cell phone at the time of his arrest violated his Fourth Amendment rights, such that the Court should suppress any and all evidence flowing from the seizure.

(ECF No. 36 at 1.)

Mr. Crutchfield additionally challenges the subsequent searches of his phone on grounds that the initial warrant to search the phone lacked probable cause, and that a subsequent warrant to conduct an expanded search was predicated on the first warrant.

(Id. at 1-2.)
Because the record before the Court does not establish the officers had probable cause to seize Mr. Crutchfield’s cell phone, the Court concludes the seizure was unlawful. Moreover, because Mr. Crutchfield establishes a nexus between that constitutional violation and the evidence obtained as a result of the subsequent searches of his cell phone conducted pursuant to the warrants, the Court recommends suppressing this evidence.

I. Background
a. The Cell Phone Seizure

Police seized Mr. Crutchfield’s cell phone at the time of his arrest on July 27, 2022. On that date, at around 10:45 p.m., Colombia Heights Police Officer Tony Miller was on duty monitoring a gas station where he had previously found numerous stolen vehicles and observed “different type[s] of crime[.]”

(Transcript of Motions Hearing (ECF No. 32) (“Tr.”) at 8–9; Gov. Ex. 4 at 2.)

Officer Miller observed a Chrysler 300 parked in the lot of the gas station without a front license plate. Officer Miller testified the vehicle caught his attention because it is illegal in Minnesota to drive a vehicle on a public roadway without a front license plate, and because he observed an individual around the vehicle wearing a ski mask in the middle of summer.

(Id. at 9.)

Officer Miller waited nearby in his squad car for the Chrysler 300 to leave the parking lot and followed when it did.

(Id. at 12.)

He ran a search of its license plate and identified the owner as Mr. Crutchfield, whose driver’s license had been revoked.

(Id.)

Officer Miller then observed the vehicle drive through a set of traffic cones in the middle of a construction zone.

(Id. at 12–13.)

He testified that driving through the cones was an illegal safety hazard.

(Id. at 13.)

Officer Miller initiated a traffic stop in response and the vehicle pulled over.

(See id. at 13–14.)

When Officer Miller approached the vehicle he made contact with a black male in the driver’s seat, identified later as Mr. Crutchfield (id. at 16), and a black female in the front passenger seat.

(Id. at 14.)

When asked for his license and registration, the driver informed Officer Miller that he did not have a license and instead provided an ID card.

(Id.)

Officer Miller testified he smelled the odor of marijuana when he approached the vehicle.

(Id. at 15.)

He asked whether there was marijuana in the vehicle, and Mr. Crutchfield reached under the radio area of the center console and showed the Officer a small “nug” of marijuana.

(Id. at 15–16.)

Mr. Crutchfield attempted to hand the nug to Officer Miller, but Officer Miller told him to put it back, walked back to his police cruiser, and waited for backup to arrive.

(Id. at 16.)

When backup arrived Officer Miller informed Mr. Crutchfield the police were going to search the vehicle, removed Mr. Crutchfield and his passenger from the vehicle, and conducted a pat-search of Mr. Crutchfield for weapons.

(Id.)

Before searching the vehicle Officer Miller asked Mr. Crutchfield if there were any weapons in the car, which Mr. Crutchfield denied.

(Id. at 39.)

But during the search, officers found a black and tan handgun under the front driver’s seat with a 9mm round in the chamber and a laser accessory.

(Gov. Ex. 4 at 2.)

The gun did not have a serial number and appeared to have been 3D printed.

(Id.)

In addition to the gun, the search yielded two nugs of marijuana, marijuana paraphernalia, a magazine holding 23 rounds of 9mm ammunition, and a generic gun case.

(Id.)

Upon finding the gun, the officers placed Mr. Crutchfield under arrest for illegal possession of a firearm, handcuffed him with his hands behind his back, and seated him in the back of Officer Miller’s partner’s squad car

(Tr. at 20, 31.)

At some point the other passenger in the car, Mr. Crutchfield’s girlfriend, came into possession of his cell phone.

(Id. at 34.)

Although the Government asserts she acquired the phone “after he was arrested” (ECF No. 37 at 2), the record does not support that assertion.

Officer Miller testified as follows:

Q. Do you recall how it is that she ended up with his cell phone?
A. I do not recall.
Q. At some point in time, he tossed it to her and gave it to her, right?
A. Yes.
Q. All right. And you observed that and you knew that he had given her his cell phone, right?
A. I don’t recall that. All I know is she ended up with the cell phone.

(Tr. at 34.)

There is no information in the record to indicate how or when Mr. Crutchfield’s girlfriend acquired his phone.

At some point after Mr. Crutchfield’s arrest, the officers asked Mr. Crutchfield’s girlfriend to give them the phone and initially she refused to comply.

(Id. at 35; see also id. at 32, 36, stating they took the phone after conducting a post-arrest interview of Mr. Crutchfield in the back of the squad car.)

They ultimately took the phone over her objections after threating to arrest her for obstruction.

(Id. at 35–36.)

The seizure appears to have been prompted by a conversation between Mr. Crutchfield and a friend who had arrived at the scene of the arrest to assist him, during which Mr. Crutchfield said he did not want the police to take his phone and wanted someone to get it.

(Gov. Ex. 4 at 2.)

When asked why they seized the phone, Officer Miller testified they believed it contained evidence but admitted they were speculating:

Q. And you believed it contained evidence but you didn’t know what was on the phone, right?
A. Yes.
Q. You didn’t know anything about Mr. Crutchfield other than what you had learned during your brief encounter with it, right?
A. Yes.
Q. And, specifically, what evidence were you looking for what you believe it contained on the phone?
A. A photo of that gun I found.
Q. And that was all speculation at that point in time because you didn’t have any idea what was on the phone, right?
A. Yes.
Q. So you basically you took it into evidence, speculating that it might contain photos of the gun that you had taken from the car, right?
A. Yes.
Q. And there weren’t any specific facts that led you to conclude that the phone contained photographs of the gun, right?
A. Correct.

(Tr. 36-37.)

At the time of the seizure Officer Miller had no previous experience with Mr. Crutchfield. (Id. at 36.) All he knew about Mr. Crutchfield was that Mr. Crutchfield had no felonies, but was driving on a revoked license with marijuana, paraphernalia, a gun and a gun magazine in his car, and did not have a permit to carry a firearm.

(Tr. 31-33, 37.)

b. The Search Warrants

On July 28, 2022, the day after the seizure, police applied for a warrant to search the cell phone.

(Gov. Ex. 4.)

Colombia Heights Police Department Sergeant Jackie Urbaniak prepared the application for the search warrant (Ex. 4 at 3).

Sergeant Urbaniak had a very limited role in Mr. Crutchfield’s case.

(Tr. at 40–41.)

She was assigned the case to write the search warrant application based on Officer Miller’s initial report.

(Id. at 41–42.)

She testified she did not have any specific knowledge that there was any probative evidence on Mr. Crutchfield’s phone.

(Id. at 45.)

For this reason, the warrant was limited in scope to the narrow time period from July 1 to July 27, 2022.

(Id. at 43–46.)

The search warrant application sought a variety of information on Mr. Crutchfield’s cell phone, including user account data, location data, call logs, text messages, photos and videos and their metadata, device logs and web browsing history (Gov. Ex. 4 at 1).

The application described Mr. Crutchfield’s arrest and the search of the vehicle based on Officer Miller’s report, stating the following with respect to how the officers obtained Mr. Crutchfield’s cell phone:

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.

A different friend of [Mr. Crutchfield] arrived on the scene and was talking to him about what he needed.

[Mr. Crutchfield] wanted someone to call his mom.

[Mr. Crutchfield] did not want the police to take his phone and wanted someone to get his phone.

Officers took the phone for evidence.

(Gov. Ex. 4 at 2.)

The application further stated that, earlier on that day, Sergeant Urbaniak looked up Mr. Crutchfield’s Facebook account and saw a photo of him with a black handgun on the ground in front of him in what appeared to be a gas station. She took screenshots of the Facebook posting for photo evidence.

(Id. at 3.)

An Anoka County Judge signed the warrant based on this information, the fact that it is illegal to carry a weapon in a motor vehicle without a permit to carry in the state of Minnesota, and that, in Sergeant Urbaniak’s training and experience “cell phones will often times contain/store GPS information, photos, videos, or other evidence that show a crime has been committed.”

(Id. at 3.)

On August 23, 2022, Sergeant Urbaniak applied for, and received, a broader warrant to search the entirety of the cell phone’s contents—without any time period limitation.

The second warrant relied on information obtained from the phone in the search conducted pursuant to the first warrant, in addition to the information contained in the original warrant application.

(Gov. Ex. 5; see also Tr. at 46.)

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).

Footnotes

[1]
Mr. Crutchfield also moved to suppress statements made while he was in custody (Motion to Suppress Statements, Admission, and Answers (ECF No. 23)), but subsequently withdrew that challenge (ECF No. 36 at 1 n.1). The Court accordingly denies the motion.

[2]
The Court would not interpret an individual’s general assertion of the right not to have any of his property seized without a warrant or probable cause as grounds for reasonable suspicion.

[3]
Because the Court’s recommendation is premised on the illegality of the initial seizure, it does not reach Mr. Crutchfield’s argument that the first warrant was itself deficient for lack of probable cause (see ECF No. 36 at 8-11), or the Government’s argument that the Leon exception would cure any such deficiency (see ECF No. 37 at 9–11).

Dulce Foster//March 17, 2016 – Minnesota Lawyer

Dulce Foster is a shareholder at Fredrikson & Byron and, along with John Lundquist and Kevin Riach, was a member of the defense team in the trial of Howard Root.

On Feb. 26, 2016, a West Texas jury returned its verdict in a federal criminal case that no doubt attracted more attention in Minnesota and Washington, D.C., than in the jurors’ own backyards.

The indictment charged Minnesota-based Vascular Solutions Inc. and its CEO, Howard Root, with misbranding and conspiracy to defraud the Food and Drug Administration. The government alleged Root had steered Vascular Solutions to market Vari-Lase®, a device used in the treatment of varicose veins, for an “off-label” use.

San Antonio isn’t renowned for its biotech industry, but here in Minnesota—the land of 10,000 medical device companies—many eyes were watching when the verdict came in: not guilty on all counts.

The verdict prevented Vascular Solutions’ potential collapse and preserved the jobs of nearly 500 company employees, most in Minnesota. It allowed the company to continue manufacturing devices that help patients with serious vascular conditions, and it gave Howard Root a new lease on life. But its significant impact on those directly involved may be overshadowed by its broader impacts on the law and the FDA.

The case raises doubts about the strategy unveiled by the Department of Justice last September to bring more cases against corporate executives, and it fundamentally undermines the FDA’s strategy for continuing to prosecute truthful off-label promotion as a form of misbranding.

A test of Yates

Howard Root

The Root case is noteworthy because it is rare for a publicly held corporation to go to trial in a criminal case. Given the high stakes and the staggering costs, plea bargains are the norm, regardless of the degree of guilt or innocence involved.

It is even more rare, if not unheard of, for a public company to go to trial with a CEO who remains at the helm while also under indictment.

In taking the case to trial, Root and Vascular Solutions unwittingly became test subjects for the Department of Justice’s new policy on corporate officer accountability.

On Sept. 9, 2015, after the indictment was returned, Deputy Attorney General Sally Quillian Yates published a memorandum outlining the department’s plan to bring more charges against individuals in corporate investigations.

Among other things, the policy prohibits federal prosecutors from negotiating settlements with corporations without first obtaining their cooperation against allegedly culpable officers and employees.

For companies loyal to their people, the costs of settlement just got much, much higher.

And while the government’s desire to hold truly culpable individuals accountable is laudable, many fear the Yates Memo will be applied as a mandate for corporations to identify and point fingers at executives, whether warranted by the facts or not.

Root’s successful defense points to the potential challenges the government will face in implementing this new policy.

A corporation under indictment will typically fold if given a reasonable opportunity to do so.

This gives the government a “win” and leaves its interpretations of law unchallenged.

But CEOs under indictment are real people with lives and liberty at stake. If they believe they are innocent, they will fight.

The Yates Memo seeks to exploit the divergent interests between companies and executives by requiring them to turn on each other as a condition of settlement, but this price may prove too high.

More companies may choose to join their executives at trial instead, and that choice is likely to leave the government with more acquittals and legal precedents that are unfavorable to prosecutors.

Off-label promotion not illegal

The key point of contention in the Root case was whether the general FDA clearance for Vari-Lase® covered the specific vein allegedly promoted. The defense successfully argued that FDA guidance on marketing for such specific indications is not binding law.

But the case is perhaps most noteworthy because it is one of the first to limit the FDA’s authority to prosecute off-label promotion by drawing a clear line between “truthful” and “misleading” speech.

The FDA has long held that once a drug or device is cleared for marketing, doctors may exercise their medical judgment and use it for any purpose they see fit.

In other words, uses not specifically approved by the FDA (so-called “off-label” uses) are perfectly legal.

But while the FDA goes out of its way to disown any interest in preventing off-label use, it has a long history of trying to prevent manufacturers from giving information to doctors about such uses.

The agency’s once unassailable position against off-label promotion showed the first signs of cracking in the late 1990s, when the Washington Legal Foundation sought an injunction against the enforcement of FDA restrictions against disseminating scientific articles about off-label uses.

United States D.C. District Judge Royce Lamberth granted the injunction on First Amendment grounds, famously commenting that,

“In asserting that any and all claims about the safety, effectiveness, contraindications, side effects, and the like regarding prescription drugs are presumptively untruthful or misleading until FDA has had the opportunity to evaluate them, the FDA exaggerates its overall place in the universe.”

The case law has developed significantly since Judge Lamberth’s watershed decision.

In 2012 the 2nd Circuit Court of Appeals overturned the criminal misbranding conviction of Alfred Caronia, a pharmaceutical sales representative who had promoted a drug off-label.

In reaching its decision, the court held that convicting the representative for off-label marketing that was not misleading would violate his First Amendment rights.

But the FDA publicly announced that the decision would have no effect on its enforcement approach.

The door was still open to future prosecutions based on the claim that the speech at issue is misleading.

The decision also permitted the government to claim it does not seek to prohibit off-label speech per se, but only the “conduct” of selling a drug or device with intent that it be used off-label.

The government maintained it could offer evidence of truthful off-label speech as a means of proving such intent.

The FDA experienced another setback in 2015, when the Amarin Corporation sued for an injunction that would prohibit enforcement against truthful speech regarding one of its drugs.

The court granted the injunction, and in doing so amplified the holding in Caronia.

The court flatly rejected the FDA’s claim that it could bring a misbranding action based solely on truthful, non-misleading statements about off-label use if the statements support an inference of intent to promote that use.

Still, the decision permitted prosecutions based on misleading off-label speech, and it allowed the government to use truthful speech as evidence in a misbranding prosecution based on other, non-speech related conduct.

The court stated that “a manufacturer that engages in non-communicative activities to promote off-label use cannot use the First Amendment as a shield.”

In the wake of these decisions, the Root case is noteworthy in part for the jury instruction offered by the government:

“It is …not a crime for a device company or its representatives to give doctors wholly truthful and non-misleading information about the unapproved use of the device.”

The government’s public acknowledgement that off-label promotion is not illegal is extraordinary.

The case is perhaps more remarkable for the instructions the court actually gave.

Once again, Judge Lamberth took center stage, this time presiding as a senior district court judge sitting by designation in the Western District of Texas.

His instructions to the jury were noteworthy in a two respects.

First, the judge instructed the panel during jury selection that off-label promotion is not illegal:

“the Food, Drug and Cosmetic Act does not prohibit truthful non-misleading off-label promotion. In other words, if the promotion is truthful and not misleading, it is not a crime under the Food, Drug and Cosmetic Act.”

By instructing the jury on this point at the outset of trial, Judge Lamberth settled the law of the case.

This was an enormous benefit to the defense, which had to address multiple prior statements from witnesses who had admitted they engaged in illegal conduct by participating in truthful off-label promotion.

Second, the judge expanded on the final jury instruction offered by the government.

He stated, “It is not a crime for a device company or its representatives to give doctors wholly truthful and non-misleading information about the unapproved use of a device. If you find that VSI’s promotional speech to doctors was solely truthful and not misleading, then you must find the defendants not guilty of the misbranding offense.”

While the first half of this instruction mirrored the government’s proposed instruction, the second half foreclosed what was left of the government’s “evidence of intended use” theory after Caronia and Amarin.

The misbranding counts rested entirely on whether the jury found the speech at issue to be misleading or not.

Finally, the Root case is significant because it expanded the impact of Caronia to a court outside the Second Circuit.

And since the case resulted in a jury acquittal, the Double Jeopardy Clause precludes any government appeal.

The 12 men and women who served on the jury have had the last word.

This is public information as mandated by the State of Minnesota Data Practices Act.

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