W.D.Mo.: Cell phone seized during child porn raid was initially seized and searched, and then seven months later searched again; no exclusion

The defendant’s cell phone was seized during a child pornography raid. The phone was attempted to be searched reasonably promptly, and it was confirmed there was child pornography on it. The search was not completed, however, because of problems with the software and equipment to do it. It was followed up seven months later. The later search was still reasonable, despite the limitations in the warrant on a 14 day window, and would not be excluded. The phone had been secured throughout. United States v. Keeter, 2018 U.S. Dist. LEXIS 116202 (W.D. Mo. July 12, 2018):

While the Eighth Circuit has not addressed the issue of delay directly under the Federal Rules of Criminal Procedure, it has been recently addressed by the Sixth Circuit in United States v. Castro, 881 F.3d 961, 966 (6th Cir. 2018). In that case the Court stated “Officers may conduct a more detailed search of an electronic device after it was properly seized so long as the later search does not exceed the probable cause articulated in the original warrant and the device has remained secured.” The Court went on to explain that this remains true “even if the officers conducted an initial search soon after the device’s seizure but waited months or years to conduct a more intensive search.” Id. The Court finds the Sixth Circuit’s discussion of the Federal Rules of Criminal Procedure as to delay in execution of search warrants persuasive. Here, there is no evidence that the search of the cellular telephone exceeded the probable cause articulated in the original warrant, and the evidence also shows that the cellular telephone remained securely stored by law enforcement during the time between the initial search and the second search. Additionally, the Court notes that second search of defendant Keeter’s cellular telephone was necessary for good reason. The first search of the cellular telephone was limited by technical difficulties with the software used to extract evidence of child pornographic images from a cellular telephone. In 2018 when SA Daniels searched the phone again, the technical difficulties experienced with the software program were no longer present and SA Daniels was able to extract the child pornography images from the cellular telephone.

Moreover, even if there was an improper delay, suppression would be warranted only if Defendant was prejudiced or if reckless disregard of proper procedure is evident. United States v. Mutschelknaus, 592 F.3d 826, 829 (8th Cir. 2010) (When the government violates Rule 41, the Court may exclude evidence described in the search warrant only if the defendant is prejudiced or if reckless disregard of proper procedure is evident). Here, Defendant asserts no evidence of prejudice or reckless disregard for proper procedure. The Eighth Circuit in the case of United States v. Beckmann, 786 F.3d 672 (8th Cir. 2015), addressed a similar issue. In Beckman the Defendant argues that the Government had violated Rule 41 because of a five month delay in executing a warrant to search existing and deleted computer files on the defendant’s seized computer. The Eighth Circuit held that the Court need not decide whether the Government violated Rule 41 because there was no evidence of prejudice or of reckless disregard sufficient to justify suppression of the evidence. The Court discussed that there was no evidence of reckless disregard especially in light of the length of time typically required to conduct computer analyses in child pornography cases. Id. at 680-81. While the Court noted the “best practice would have been for the detectives to file a motion seeking additional time to execute the warrant, their failure to do so here does not warrant suppression.” Id. at 681.