Defendant was a guard at Riker’s Island prison complex, and he was arrested in a drug conspiracy. When a cell phone is removed from a person at the time of arrest and a search warrant is sought, the government doesn’t have to show it knew that any particular phone was involved in the crime, just that some cell phone might have been. The ones seized off the person are inferentially involved. Also, the good faith exception applies to warrant execution, and it is applied here. United States v. Romain, 2014 U.S. Dist. LEXIS 166500 (S.D.N.Y. December 1, 2014):
1. There Was Sufficient Probable Cause To Search The Cellphones
Defendant contends that the Government’s extraction of data from the Cellphone ending in -2171 was unconstitutional because the Affidavit does not make mention of the -2171 phone in connection with a crime. In other words, Defendant asserts that the Government did not tie the Cellphone ending in -2171 to the alleged offenses for which a search is warranted and, as such, the search of the Cellphone ending in -2171 was improper.
However, neither the Application nor the Warrant identifies or defines the Cellphones according to their final four digits. Both identify and define the Cellphones as those which were seized in connection with the arrest of the Defendant, notwithstanding the fact that the Application makes mention of certain four digit extensions as those used by the Defendant, “including” extensions -1695 and -3636, but does not mention -2171. (Strafaci Aff. ¶ 2; Warrant Attach. A.) The Application and its supporting documents presented facts indicating that the Defendant, who was arrested with multiple cellphones on his person, used multiple cellphones to communicate orally and via text message with co-conspirators throughout the duration of the alleged conspiracy, and that such conduct tends to leave evidence of the conspiracy on the phones themselves.
The relevant inquiry then is whether the two Cellphones taken from the Defendant were reasonably likely to contain evidence of the crimes described given the facts in the Application, not whether either phone matched a particular extension mentioned in the Affidavit. See Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (requiring a showing of “a fair probability that contraband or evidence of a crime will be found”). The Government’s Application sufficiently lays out a sound basis from which to conclude that the Cellphones would contain evidence of wrongdoing. See United States v. Singh, 390 F.3d 168, 182 (2d Cir. 2004) (quoting Buck, 1986 U.S. Dist. LEXIS 18579, 1986 WL 12533, at *4) (noting that the nexus between the items sought and the particular place to be searched “may be based on ‘reasonable inference’ from the facts presented based on both common sense and experience.”) (internal quotation marks omitted). Thus, there was probable cause to search both Cellphones, including the one ending in -2171.
2. The Good Faith Exception Applies To Defendant’s Contentions That The Warrant Was Overbroad And Failed To Meet The Particularity Requirement
Defendant contends that the Warrant is facially deficient because it lacks any articulation of a particular criminal offense and because the Affidavit used in support of the Application was not also appended to the Warrant. (Def.’s Mem. 10-11.) Defendant further contends that because each of the seven paragraphs in “Attachment A” of the Warrant call for the search and seizure of “any and all” items described in each respective paragraph, the “all” modifier renders the Warrant impermissibly overbroad. (Def.’s Mem. 10-11, 13-15.)
Particularity and overbreadth are “two distinct legal issues.” Zemlyansky, 945 F. Supp. 2d at 450. Defendant asserts that because the Warrant failed to reference a criminal offense by failing to incorporate the Application and its supporting documents, the Warrant was insufficiently particular because it failed to provide an adequate factual basis on which to limit the scope of the search. Defendant also asserts, in tandem to his particularity argument, that the language used in the Warrant was impermissibly broad.
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It is undisputed that the Warrant neither referenced a criminal statute nor the Application or its supporting documents and that this constitutes a deficiency. (See Hr’g Tr. 10:16-17 (“The government does not contend that [the lack of a reference to the crime] isn’t a problem. It is.”).) The Warrant on its face does not satisfy the first prong of the particularity analysis. Thus, the relevant question is not whether the Warrant is insufficiently particular, because it is, but rather whether, in this context, the exclusionary rule should apply to evidence obtained as a result of the execution of the Warrant, or whether the “good faith exception” applies to the Government’s conduct.
The exclusionary rule mandates that “[s]uppression is required when (1) there is a widespread seizure of items not covered by the warrant and (2) agents do not act in good faith.” United States v. Ganias, 755 F.3d 125, 140 (2d Cir. 2014). In making their determination, Courts must take care to weigh the benefits of deterrence against the costs of suppression. Id. (citing Herring, 555 U.S. at 141).
Evidence “obtained in objectively reasonable reliance on a subsequently invalidated search warrant” can constitute a good faith exception to the exclusionary rule. United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). There are four circumstances under Leon, however, in which a good faith exception would not apply: “(1) where the issuing magistrate has been knowingly misled; (2) where the issuing magistrate wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient that reliance upon it is unreasonable.” Galpin, 720 F.3d at 452 (citing United States v. Moore, 968 F.2d 216, 222 (2d Cir. 1992)). “The burden is on the government to demonstrate the objective reasonableness of the officers’ good faith reliance.” Ganias, 755 F.3d at 136 (quoting United States v. Voustianiouk, 685 F.3d 206, 215 (2d Cir. 2012)) (internal quotation marks omitted).
The Government’s actions in this case do not foreclose the application of the good faith exception. There is no indication, and the Defendant does not allege, that either of the first two Leon triggers would apply. Additionally, as discussed above, there was sufficient probable cause to support the Application, thus rendering the third Leon trigger also inapplicable.
