N.D.Iowa: 27 month delay in seeking SW for cell phone was unreasonable, and GFE not applied

A 27 month delay in getting a search warrant for defendant’s cell phone was unreasonable, and the good faith exception is not applied. United States v. Tu Anh Nguyen, 2021 U.S. Dist. LEXIS 70671 (N.D. Iowa Mar. 16, 2021):

The parties have not pointed to, and the court has not found, any decisions of the Eighth Circuit Court of Appeals directly addressing the issues presented, here. Nevertheless, the parties appear to agree that the applicable analysis is for the court to consider relevant factors, including the following: “[1] the length of the delay, [2] the importance of the seized property to the defendant, [3] whether the defendant had a reduced property interest in the seized item, and [4] the strength of the state’s justification for the delay.” United States v. Smith, 967 F.3d 198, 206 (2d Cir. 2020) (cited by Nguyen), and compare United States v. Laist, 702 F.3d 608, 613-14 (11th Cir. 2012) (cited by thegovernment) (“In the past, courts have identified several factors highly relevant to this inquiry: first, the significance of the interference with the person’s possessory interest; second, the duration of the delay; third, whether or not the person consented to the seizure; and fourth, the government’s legitimate interest in holding the property as evidence.” (citations omitted)).

. . .

Here, the court finds that the government’s reliance on Leon, based on an undisputed assertion that probable cause existed to search the cell phone, is misdirected. The constitutional error, here, is not lack of probable cause but unreasonable delay in seeking a warrant. Here, unlike in Smith, the court is convinced that an objectively reasonable officer would have known that the delay, which the court found in this case was anywhere from 4 months to 27 months, amounted to a violation of the Fourth Amendment. 967 F.3d at 213. To put it another way, the court finds that this is not a situation in which “the unreasonableness of the delay is a very close call,” such that an officer could not be charged with knowledge that the delay violated the law. Burgard, 675 F.3d at 1036. It is a situation in which the unreasonableness of the delay is patently obvious. Therefore, exclusion is the appropriate remedy.