United States District Court, D. Delaware
RICHARD G. ANDREWS, District Judge.
Defendant has filed a motion to suppress. (D.I. 54). It seeks to suppress the fruits of a search of Defendant's residence pursuant to a warrant (Mag. Case No. 13-99M) and the fruits of searches of five cellular telephones pursuant to a warrant. (Mag. Case No. 13-101M). The motion also seeks to suppress the fruits of a search incident to the arrest of Defendant.
According to the search warrant return in the Court's file in Mag. Case No. 13-99M, agents executing the search at the residence seized one "black bag, " one "jar with green leafy substance, " two "jars, " a "quantity of United States Currency (USC), " one "letter envelope, " one "bag of No Dose - bag w/ white substance, " two "digital scales, " "misc. documents, " two "cell phones w/ charger, " one "set of keys, " and two "cell phones." The United States in its memo provides a similar description of what was seized, including the information that the currency consisted of $5, 672 genuine currency and $8, 820 in counterfeit currency. (D.I. 55 at 6). There is no search warrant return in the Court's file relating to the second search warrant,  although there is an Application and Order concerning obtaining a manufacturer's assistance in unlocking a cellular phone that "is the subject of [the] search warrant." The Order is dated October 14, 2013.
The motion to suppress states, in conclusory form, that the two search warrants were "not based on probable cause, " (D.I. 54, ¶¶ 9 & 10), that the two search warrants were "general warrants, " ( Id., ¶ 11), that the search of Defendant's person was "without reasonable suspicion or untainted probable cause to arrest, " and that the second search warrant was thus also "fruit of the poisonous tree." ( Id., ¶ 8). In the accompanying memo, Defendant only presses two points: (1) that some of the items sought by the search warrants were not supported by probable cause (that is, items relating to drug trafficking and gang membership); and (2) the two warrants were "general warrants." In support of the second argument, Defendant relies upon United States v. Fleet Management Ltd., 521 F.Supp.2d 436 (E.D. Pa. 2007).
The Government filed an Opposition, in which it identified three pieces of evidence that it intends to use at trial, namely, from the residence search, the United States currency and a car key tag (further described as the keys to a particular car that the Government wishes to associate with Defendant), and from the search of one of the cellular phones, "a text message that contained a picture of five of the stolen firearms." (D.I. 55 at 2). The Government specifically disclaims an intention to use what might be called the drug trafficking evidence seized from the search of the residence. ( Id. at 11 n.4). The Government's description necessarily also means that it intends to use the cellular phone that contained the incriminating text message.
Defendant filed a "Response" to the Government's Opposition. (D.I. 60). It is twelve pages long - twice as long as the original motion to suppress. It covers the same ground as the original motion, but also raises arguments in support of its theories that were not raised in the original motion.
It appears as though Defendant was arrested without a warrant more or less contemporaneously with the execution of the residence search warrant, and the one of the five cellular phones was seized from his person. I cannot tell from the papers submitted which of the five phones was the one that had the incriminating text message.
The residence search warrant affidavit establishes more than sufficiently that there was probable cause to believe Defendant committed various federal firearms offenses, including possession of a firearm by a felon, possession of stolen firearms, and trafficking in firearms. In addition, it establishes a reasonable basis to believe that the residence was Defendant's residence (Affidavit, ¶¶ 20-22), and that evidence of firearms offenses would be found there. (Affidavit, ¶¶ 24-26). Defendant specifically omits reference to the firearms-related "items to be seized" when cataloguing the warrant's deficiencies. (D.I. 54, Memo, pp. 2-3). Although the request to seize cellular phones appears in the drug section of the items to be seized, cellular phones are identified in the affidavit as being equally relevant to firearms trafficking. (Affidavit, ¶¶ 25 & 26). The evidence for some of the other items to be seized is thinner, but there is some evidence for seizure of all the items other than the prescription pain medication. For example, there is evidence - the wearing of the red sweatshirt - that suggests Defendant's membership in the Bloods, and evidence that Defendant distributed two ounces of cocaine.
Thus, if there is any problem with the residential search warrant, it is that it is a little overbroad. The remedy for that, however, is not to suppress all the evidence, but to suppress just those seized items that result from the overbroad portions. See United States v. Christine, 687 F.2d 749, 754 (3d Cir. 1982). The only things that were seized pursuant to the firearms-related probable cause were the four cellular phones, one of which might be the source of the text message. Thus, I will not suppress the four cellular phones seized pursuant to the warrant (or the one phone seized pursuant to the search incident to arrest, as there was probable cause for the arrest). As for the cash and the car key tag, it seems as though they were seized as being in plain view, although neither party addresses that in their submissions. In any event, since Defendant does not challenge the execution of the search warrant, there is, in my opinion, no basis to suppress the seizure of the cellular telephones, the cash, and the car key tag.
In regard to the residential search warrant, Defendant argues that it is a general warrant, because the use of "including but not limited to" places no limitations on the things to be seized. One has to read the "items to be seized" in context. It specifies six related firearms offenses as the offenses to which the items relate, which narrows the scope of the search. See United States v. Yusef, 461 F.3d 374, 395 (3d Cir. 2006). It then further limits the search by defining five reasonably particular categories of things that would constitute "fruits, evidence and/or instrumentalities" of the six enumerated crimes. It is not a general warrant.
Thus, I will not grant the motion to suppress as it relates to the seizure of the cash, the car key tag, and the five cellular phones.
The second warrant suggested that maybe it was not needed. (Affidavit, ¶ 5). The Government's caution in proceeding to search the cell phones without a warrant proved prescient. See Riley v. California, 134 S.Ct. 2473 (2014) (requiring a warrant when cell phone seized incident to arrest). It was needed.
A fair reading of the "items to be seized" (or "Attachment B") is that the cell phones can be searched as fully as possible to seize:
the following items that, as described in the above application, constitute fruits, evidence and instrumentalities of violations of [four specified federal firearms statutes], [conspiracy to commit an offense against the United States and aiding and abetting ...