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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)