N.D.Ga.: Nexus shown to connect def’s cell phone in car to potential gang retaliation

Nexus can be proved by inference or direct observation. Defendant was found in his car with weapons as a FIPF in rival gang territory when he was arrested, and it’s a reasonable inference the cell phone in the car would have pertinent evidence linking him to the potential retaliation. United States v. Kendricks, 2016 U.S. Dist. LEXIS 142027 (N.D.Ga. Aug. 22, 2016), adopted, 2016 U.S. Dist. LEXIS 142027 (N.D.Ga. Oct. 13, 2016):

Here, probable cause existed to show the requisite nexus between the violent gang activity being investigated under O.C.G.A. § 16-15-4(a) and Kendricks’s cell phone. The affidavit showed that Kendricks was a gang member, he was in a vehicle with another gang member, and his gang was in a retaliatory dispute with another gang. The vehicle from which he fled contained the cell phone, along with a .40 caliber handgun and an AK-47 assault rifle, weapons the affiant deemed consistent with prior retaliatory shootings. One such shooting involving members of Kendricks’s gang occurred four days prior to the October 1 incident, and the weapons, how Kendricks was dressed, and the fact that Kendricks was in the rival gang’s territory reasonably led Dennis to conclude that Kendricks and Arnold were seeking to retaliate for the September 26 shooting. Since both Kendricks and Arnold possessed cell phones, given these circumstances, it was likely that, at a minimum, evidence that they communicated with each other and others about the rivalry and possible retaliatory acts, including acts of retaliation that already had occurred, would be contained on Kendricks’s cell phone. Thus, it made perfect common sense for the issuing judge to infer that information related to these acts would be found in or on the phone. See Riley v. California, __ U.S. __, __, 134 S. Ct. 2473, 2489-90, 189 L. Ed. 2d 430 (2014) (recognizing that cell phones are ubiquitous instruments of modern life and have immense storage capacity, including contacts and historic location information); United States v. Brewer, No. 1:13-CR-13-03, 2015 U.S. Dist. LEXIS 62260, 2015 WL 2250150, at *4 (M.D. Pa. May 12, 2015) (holding that reasonable for magistrate judge to infer that information related to presence at the robbery would be found in cell phone) (citing Riley).

Thus, the Court concludes that the warrant was supported by an adequate nexus between the cell phone and crimes under investigation, and therefore, Kendricks’s motion to suppress, [Doc. 30], should be denied.