E.D.Mo.: Federal SW for cell phone after private search then state SW was on independent source

Defendant’s cell phone was first the subject of a private search, and then a police search. The police search exceeded the scope of the private search, and that led to a state issued search warrant. The state search warrant was looking for child pornography through defendant’s IP address. The warrant didn’t say “cell phone” and it easily could have, but the court declines to suppress based solely on that. Moreover, there is no indication of bad faith or that the good faith exception should not apply. Then, a federal search warrant was issued for the same phone. Even if the state warrant was subject to suppression here, the federal search warrant was based on an independent source. United States v. Suellentrop, 2018 U.S. Dist. LEXIS 137190 (E.D. Mo. July 23, 2018), adopted, 2018 U.S. Dist. LEXIS 136136 (E.D. Mo. Aug. 13, 2018):

The record established at the evidentiary hearing supports a conclusion that the FBI would have applied for a search warrant even if there were no concerns regarding the State-issued warrant. S/A Burbridge testified that, after he received reports from the Jefferson County Sheriff’s Department, he determined that he would apply for a federal warrant. When asked why, S/A Burbridge first testified that he wanted to make sure he had “all of the evidence that was inside the phone, you know, extract it…. I wanted all the information that could be obtained within the phone.” (Tr. 125) As for concerns for the State-issued warrant, S/A Burbidge testified that he did not know for sure whether the phone was covered by that warrant. (See id.) S/A Burbridge has more than 30 years of experience as a federal agent. The undersigned had the opportunity to observe S/A Burbridge’s demeanor during his direct and cross examination and fully credits his testimony in this matter.

Based on this record, the undersigned finds by a preponderance of the evidence that, once a federal investigation was underway, S/A Burbridge would have applied for a federal warrant, regardless of whether he also harbored concerns as to the scope of the prior State-issued search warrant. S/A Burbridge testified he wanted to ensure that all of the evidence on the cell phone was extracted. Thus, the Court need not simply “infer from the circumstances,” see Rodriguez, 834 F.3d at 942, that the FBI would inevitably have done once the case was referred to them. Accordingly, the government has met its burden under the first prong of the requisite inquiry under the independent source doctrine.

The government readily satisfies the second prong of the independent source doctrine because the search warrant affidavit S/A Burbridge submitted did not refer to any tainted information. The affidavit supplies ample probable cause to conclude that evidence of child pornography was located on Suellentrop’s cell phone.

In summary, even assuming that the additional cell phone evidence obtained pursuant to the State-issued search warrant must be suppressed, the federal search warrant serves as an independent source. Therefore, the evidence obtained as a result of the federal search warrant should not be suppressed as fruit of the poisonous tree.

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