N.D.N.Y.: Violation of Rule 41 in delay in searching cell phone doesn’t require suppression

The government obtained a search warrant for defendant’s cell phone and seized it promptly. The forensic search of the phone, however, didn’t occur for 85 days, after the 60 day window in the warrant. The defense, however, can show no prejudice. The delay did not diminish the probable cause for the search of the cell phone. Mere technical violations of Rule 41 do not require suppression. Child pornography was found on the phone. United States v. Filippi, 2015 U.S. Dist. LEXIS 137794 (N.D.N.Y. Sept. 9, 2015):

B. The Government’s Failure To Comply with the Addendum Does Not Warrant Exclusion of the Evidence.

In analogous cases where a search failed to comply with the requirements of Rule 41 of the Federal Rules of Criminal Procedure, including the time limit for executing the warrant, the Second Circuit has held that such violations “should not lead to exclusion unless (1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.” United States v. Pangburn, 983 F.2d 449, 455 (2d Cir. 1993) (citing United States v. Burke, 517 F.2d 377, 386-87 (2d Cir. 1975)); see also United States v. Johnson, 660 F.2d 749, 753 (9th Cir. 1981) (“Only a ‘fundamental’ violation of Rule 41 requires automatic suppression, and a violation is ‘fundamental’ only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards.”).

“Technical” violations of Rule 41 are not considered ‘deliberate and intentional disregard’ of the Rule that would justify suppression.” United States v. Deas, No. 3:07-CR-73, 2008 U.S. Dist. LEXIS 96088, at *8, 2008 WL 5063901, at *2 (D. Conn. Nov. 24, 2008) (quoting United States v. Williamson, 439 F.3d 1125, 1134 n.7 (9th Cir. 2006)); see also United States v. Rodriguez, No. 3:11-CR-12, 2011 U.S. Dist. LEXIS 65000, at *25-26, 2011 WL 2470714, at *8 (D. Conn. June 20, 2011) (denying motion to suppress where, even assuming a “technical” violation of Rule 41 occurred, there was no evidence of prejudice to defendant or that law enforcement deliberately disregarded the rule); United States v. Dewar, 489 F. Supp. 2d 351, 365 (S.D.N.Y. 2007) (declining to suppress evidence where the warrant was supported by probable cause and defendants “suffered no prejudice from the technical violation of Rule 41.”). Thus, in Rule 41 cases, “[c]ourts have declined to order suppression of evidence seized pursuant to belatedly-executed warrants where probable cause still existed at the time of the execution and the police did not deliberately disregard the terms of the warrant.” United States v. Ahmad, No. 11-CR-6130L, 2012 U.S. Dist. LEXIS 74325, at *24, 2012 WL 1944615, at *8 (W.D.N.Y. May 29, 2012) (citing cases), report and recommendation adopted, No. 11-CR-6130L, 2012 U.S. Dist. LEXIS 103003, 2012 WL 3028302 (W.D.N.Y. July 24, 2012).

Here, there is no evidence that the government acted in bad faith or with deliberate disregard of the search warrant deadline. Rather, the government argues that any error was “inadvertent and due to the failure to comply with Addendum’s administrative requirements of seeking an extension of the 60-day period.” (Dkt. No. 46, p. 16).