Defendant was a Delta baggage employee accused of conspiring with others to ship firearms by air from Atlanta to NYC and bypassing TSA security. Search warrants were obtained for his cell phone and house. The forensic search of the cell phone finally occurred after the “expiration date” required under Rule 41. With cell phones and warrant expiration dates, the question is bad faith and deliberate delay for a constitutional violation, and that’s not the case here. United States v. Harvey, 2015 U.S. Dist. LEXIS 174276 (N.D.Ga. Nov. 30, 2015), adopted 2016 U.S. Dist. LEXIS 2093 (N.D. Ga. Jan. 8, 2016). [And note: Most cell phone forensic searches occur after the expiration date. It is a common issue seldom rising to a constitutional violation, but it has on occasion.] From the case:
3. Expiration of the December 30, 2014, Search Warrant
“The Fourth Amendment does not specify that search warrants contain expiration dates.” United States v. Gerber, 994 F.2d 1556, 1559 (11th Cir. 1993); United States v. Hodges, Criminal Case No. 1:09-CR-562-CAP-LTW, 2010 U.S. Dist. LEXIS 118437, 2010 WL 4639238, at *3 (N.D. Ga. Sept. 15, 2010) (citations omitted). Indeed, the Fourth Amendment “contains no requirements about when the search or seizure is to occur or the duration.” Hodges, 2010 U.S. Dist. LEXIS 118437, 2010 WL 4639238, at *3 (citation and internal marks omitted). However, “Rule 41(e)(2)(A)(i) [of the Federal Rules of Criminal Procedure] provides that warrants must command officers to execute the warrant within a specified time no longer than 14 days.” United States v. Ilonzo, Criminal File No. 1:12-CR-276-SCJ-GGB, 2015 U.S. Dist. LEXIS 136783, 2015 WL 5827598, at *22 (N.D. Ga. Oct. 6, 2015), adopted at 2015 U.S. Dist. LEXIS 135895, [WL] at *6. “Violations of Rule 41 do not necessarily rise to the level of constitutional violations, however.” United States v. Ahmad, No. 11-CR-6130L, 2012 U.S. Dist. LEXIS 74325, 2012 WL 1944615, at *8 (W.D.N.Y. May 29, 2012), adopted by 2012 U.S. Dist. LEXIS 103003, 2012 WL 3028302, at *3 (W.D.N.Y. July 24, 2012) (citation omitted). When analyzing Rule 41 violations pertaining to search warrants, the Eleventh Circuit has stated:
Unless a clear constitutional violation occurs, noncompliance with Rule 41 requires suppression of evidence only where (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 an intentional and deliberate disregard of a provision in the Rule.
United States v. Brown, 569 F. App’x 759, 762 (11th Cir. 2014) (per curiam) (unpublished) (emphasis, citation, and internal marks omitted); Gerber, 994 F.2d at 1560 (citations omitted) (“Federal courts that have addressed the precise issue presented in this case have concluded that completing a search shortly after the expiration of a search warrant does not rise to the level of a constitutional violation and cannot be the basis for suppressing evidence seized so long as probable cause continues to exist, and the government does not act in bad faith.”); United States v. Ellis, Criminal Case No. 1:10-CR-00189-TWT-LTW, 2011 U.S. Dist. LEXIS 39781, 2011 WL 1375583, at *4 (N.D. Ga. Mar. 4, 2011), adopted by 2011 U.S. Dist. LEXIS 39792, 2011 WL 1375574, at *1 (N.D. Ga. Apr. 11, 2011) (finding analysis for Rule 41 violations adopted by the Eleventh Circuit should also apply to “technical violations of the warrant itself”); see also Ahmad, 2012 U.S. Dist. LEXIS 74325, 2012 WL 1944615, at *8 (citations omitted).
Although the original December 30, 2014, search warrant expired on January 13, 2015, [Doc. 60-1 at 27], the cell phone was not unlocked and imaged until January 23, 2015, [Doc. 60-2 at 5 ¶ 9]. In this case, there has not been a clear constitutional violation, see United States v. Stanton, No. 2:09-cr-175-MEF, 2010 U.S. Dist. LEXIS 52817, 2010 WL 2179892, at *9 (M.D. Ala. Apr. 30, 2010), adopted by 2010 U.S. Dist. LEXIS 52635, 2010 WL 2179890, at *1 (M.D. Ala. May 27, 2010), and thus, whether suppression of the evidence is warranted depends on whether there was prejudice or whether the agents deliberately and intentionally disregarded Rule 41 and the expiration date in the warrant, Brown, 569 F. App’x at 762. Harvey has not shown that he was prejudiced “in the sense that the search might not have occurred or would not have been so abrasive” if the search warrant had been executed by January 13, 2015. Gerber, 994 F.2d at 1560 (emphasis and citation omitted).
In addition, there is no evidence that the government intentionally and deliberately disregarded the search warrant’s date of expiration. Instead, the government asserts that Harvey’s phone, “which was drained of power and locked with a numerical code,” was given to FBI-CART on January 6, 2015. [Doc. 60 at 4]. Despite diligent efforts to gain access to Harvey’s phone, FBI-CART was unable to unlock the phone until January 23, 2015, at which time a forensic image was made. [Id.]. Agent Taylor then sought a second warrant on February 2, 2015. [Doc. 60-2 at 1, 43]. Indeed, the government argues that “[n]o examination of the copied data was begun until after the second search warrant was obtained.” [Doc. 60 at 4]. Moreover, probable cause continued to exist on January 23, 2015. Because Harvey has not alleged any prejudice, there is no evidence that the government acted in bad faith, and the delay did not diminish probable cause, Harvey’s argument for suppression is without merit, and therefore, the imaging of Harvey’s cell phone on January 23, 2015, after the expiration of the December 30, 2014, search warrant does not warrant suppression of the evidence obtained from his cell phone. See United States v. Filippi, No. 5:15-CR-133 (BKS), 2015 U.S. Dist. LEXIS 137794, 2015 WL 5789846, at *7 (N.D.N.Y. Sept. 9, 2015) (holding government’s one-month delay in searching the phone after expiration of the warrant did not warrant suppression of the evidence because “there [was] no evidence that the government acting in bad faith or with deliberate disregard of the search warrant deadline,” the defendant did “not allege any prejudice,” and the delay “did not diminish probable cause for the search of defendant’s phone”); Ahmad, 2012 U.S. Dist. LEXIS 74325, 2012 WL 1944615, at *8 (denying defendant’s motion to suppress because even though the agent did not execute the warrant until four days after its expiration, “probable cause to seize the items had not lapsed,” the defendant “made no showing or even suggestion of prejudice resulting from the belated execution[,] and no evidence exists that [the agent] intentionally disregarded the terms of the warrant”).
