W.D.Va.: 78 day delay in getting SW for child porn on seized laptop was reasonable

Defense counsel was not ineffective for not filing a motion to suppress the warrantless seizure of defendant’s laptop for child pornography and then waiting 78 days to get a search warrant for it. Under the circumstances, the 78 day delay was reasonable. United States v. Brown, 2013 U.S. Dist. LEXIS 180987 (W.D. Va. December 30, 2013):

When balancing the individual person’s interest against the state’s interest, a court must “take into account whether the police diligently pursue[d] their investigation.” Place, 462 U.S. at 709. “When police act with diligence, courts can have greater confidence that the police interest is legitimate and that the intrusion is no greater than reasonably necessary.” Burgard, 675 F.3d at 1033 (citing McArthur, 531 U.S. at 331 (upholding two-hour delay because it was “no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant”)). “When police neglect to seek a warrant without any good explanation for that delay, it appears that the state is indifferent to searching the item and the intrusion on an individual’s possessory interest is less likely to be justifiable.” Id. at 1033-34 (emphasis added) (comparing U.S. v. Mitchell, 565 F.3d 1347, 1351 (11th Cir. 2009) (21-day delay was unreasonable where “[t]he only reason Agent West gave for the twenty-one-day delay in applying for a search warrant was that he ‘didn’t see any urgency'”), with U.S. v. Vallimont, 378 Fed. Appx. 972, 976 (11th Cir. 2010) (45-day delay reasonable where officers’ attention was diverted to other matters but officers continued to work on the search warrant)).

Defendant hangs his hat on one case from the United States Court of Appeals for the Eleventh Circuit, U.S. v. Mitchell, 565 F.3d 1347, where it was found that a twenty-one day delay between a valid warrantless seizure of a computer and the application for a search warrant was unreasonable. That case, however, is distinguishable from this case and, more importantly, it underscores that there is no bright-line rule for unreasonableness, and that a delay is evaluated on a case-by-case basis and in light of all of the facts and circumstances. See, e.g., Mitchell, 565 F.3d at 1351, 1352 (“we emphasize again that we are applying a rule of reasonableness that is dependent on all the circumstances”) (citation omitted)12; Stabile, 633 F.3d at 235-36 (same; three-month delay found reasonable); Burgard, 675 F.3d at 1033-34 (six-day delay not unreasonable, and citing cases with longer delays); U.S. v. Camp, 2012 WL 148690 at *2 (E.D. N.C. 2012) (citing Mitchell, 565 F.3d at 1351, and finding that, considering “all of the facts and circumstances surrounding the delay,” a 19-day delay was justified).