N.D.Ga.: Two year delay in searching seized cell phone not unreasonable

Defendant’s cell phone was seized in April 2017 but not finally searched until April 2019. This was still reasonable under Rule 41. United States v. Dixon, 2021 U.S. Dist. LEXIS 95041 (N.D. Ga. Apr. 15, 2021):

Accordingly, although the government’s 24-month delay in searching the iPhone was “certainly lengthy,” it “does not furnish a basis to suppress evidence obtained from [the iPhone].” Estime, 2020 WL 6075554, at *14-15 (finding the government’s ongoing delay in reviewing the electronically stored information in defendant’s cellphone was not unreasonable even though 10 months had already passed and the government was still working on accessing the information due to the difficulties created by encryption); see also United States v. Morgan, 443 F. Supp. 3d 405, 406, 410 (W.D.N.Y. 2020) (concluding that there was “still plenty of time for the government to access the iPhone’s contents” where the trial was not scheduled to commence until the following year, even though the iPhone was seized in May 2018 and the government to date “ha[d] been unsuccessful . . . in accessing the contents of the iPhone,” which was protected by a passcode); United States v. Pinto-Thomaz, 352 F. Supp. 3d 287, 312-13 (S.D.N.Y. 2018) (footnote omitted) (finding, “contrary to [defendant’s] arguments, the [g]overnment ha[d] not exceeded any constitutional or Rule 41 deadline for concluding its search of the iPhone given the difficulties posed by encryption” where the government was still unable to break the encryption after several months because the “phone [was] locked and passcode-protected” and defendant had “refused to provide the passcode”).

Dixon also argues in his reply brief that the probable cause relied on to obtain the search warrant had been extinguished after the search of the property and thus could not support the search of his phone, [Doc. 64 at 6-11], asserting that “[h]ad the government applied for a search warrant in 2019 prior to the search of the phone and included in the probable cause affidavit the additional, material facts learned in their investigation of the ‘Makaylaa’ matter following the issuance of the 2017 warrant,” including the agents’ “observations of [] Dixon’s abject poverty and inability to carry out the suspected scheme, the absence of Western Union or Pay[P]al records, and the absence of evidence of sexual abuse of his siblings,” a “neutral magistrate would not have found probable cause to issue a warrant,” [id. at 9]. The Court finds these arguments unavailing.