E.D.Mich.: Texas state SW was used to search cell phones, but FBI later searched by downloading contents w/o warrant so latter search suppressed; conspiracy to rob infers nexus

The Texas state court search warrant authorized a search for evidence on a cell phone of any crime, and that’s problematic. The affidavit, however, specifically referred to home invasion robberies, and that gave context. The search warrant was thus particular. The question of nexus of the cell phone to the crimes is based on reasonable inferences. There were three people involved in planning and executing three home invasions in three days, and it was entirely reasonable to believe that they communicated with each other by cell phones. The FBI’s later comprehensive search of the cell phones without a separate warrant was not considered an extension of the first. A search warrant can only be executed once. United States v. Olaya, 2017 U.S. Dist. LEXIS 72520 (E.D. Mich. April 19, 2017):

Olaya also argues that even if the screenshots that Esparza obtained should not be suppressed, the results of the more comprehensive FBI search should be. The Court agrees.

“[T]he general rule [is] that a warrant authorizes only one search.” United States v. Keszthelyi, 308 F.3d 557, 568-69 (6th Cir. 2002); accord United States v. Harris, No. 03-0310, 2004 U.S. Dist. LEXIS 6879, 2004 WL 856634, at *6 (E.D. La. Apr. 19, 2004); see also Wayne R. LaFave, 2 Search & Seizure § 4.10(d) (5th ed.) (“[A] warrant may be executed only once[.]“). There is a “reasonable continuation” exception, however, where the subsequent search pursuant to the same warrant is a continuation and not new search and “the decision to conduct a second entry to continue the search” is reasonable under the circumstances. Keszthelyi, 308 F.3d at 569.

In United States v. Mayne, No. CR13-1017, 2013 U.S. Dist. LEXIS 163898, 2013 WL 6054453 (Nov. 15, 2013), report and recommendation adopted, 2013 U.S. Dist. LEXIS 172620, 2013 WL 6410976 (N.D. Iowa Dec. 9, 2013), the court applied the one-search-per-warrant rule articulated in Keszthelyi to hold that a second search was unconstitutional. There, state police obtained a warrant to search a fire-damaged house for evidence of methamphetamine manufacture. 2013 U.S. Dist. LEXIS 163898, [WL] at *2. Fifteen days after executing the warrant and filing the return, the officers conducted another search of the home. See 2013 U.S. Dist. LEXIS 163898, [WL] at *3, *11. The court, applying the rule articulated in Keszthelyi, found that the second search was not a continuation of the first:

[I]t could be argued that investigators were unable to complete their search on December 4 due to the condition of the structure. That is, while investigators seized a substantial number of items which were consistent with the manufacture of methamphetamine, they were not able to venture far into the basement due to the potential for collapse. Unlike those cases where the reasonable continuation rule has been applied, however, Lieutenant Haupert returned the search warrant to the court, together with an inventory of items seized. … At no time did Haupert advise the court that the search was suspended for any reason or would be continued on a later date. … I conclude that the search conducted 15 days later, on December 19, was not merely a continuation of the first search.

Mayne, 2013 U.S. Dist. LEXIS 163898, 2013 WL 6054453, at *14-15. Thus, the court found that the December 19th search was a warrantless entry and violated the Fourth Amendment. 2013 U.S. Dist. LEXIS 163898, [WL] at *15.

The Court reaches a similar conclusion here. The Texas warrant gave a Texas officer three days to execute the warrant. Consistent with those limitations, on December 12, 2014, Esparza executed the warrant. (See R. 148, PID 508.) Not only that, on December 14, 2014, Esparza signed and filed a search warrant return. (Id.) His return states that he obtained a “CD-R containing digital photos of text messages.” (Id.) There is nothing in Esparza’s return—or elsewhere—indicating that he had not completed his search or that the search would be continued at a later date. Texas was done. Yet, nine months later, federal officers performed a second search. On these facts, the Court finds that the first search terminated in December 2014 and that the FBI’s search in September 2015 was a second search. Cf. Mayne, 2013 U.S. Dist. LEXIS 163898, 2013 WL 6054453, at *14-15. The FBI had no new warrant for this new search, and so the Government violated Olaya’s Fourth Amendment rights in conducting the Cellebrite extraction. See Riley, 134 S. Ct. at 2493.

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Accordingly, the Court will suppress the results of the Cellebrite extraction performed by the FBI in September 2015 and any evidence obtained derivative to that extraction. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

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