N.D.Ga.: 90 day delay in getting SW for seized cell phones was unreasonable

Defendant conceded his cell phones were properly seized, but the government’s 90 day delay in getting a search warrant for the cell phones were unreasonable and required suppression. United States v. Shaw, 2012 U.S. Dist. LEXIS 32624 (N.D. Ga. February 10, 2012):

The facts of the instant case are not materially distinguishable from Mitchell [United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009),] and dictate the same result. In Mitchell, the computer hard drive was seized without Defendant’s consent based upon the officers’ belief it might contain child pornography. Likewise, in the instant case, the three cell phones were seized without Defendant’s consent, incident to arrest and based upon probable cause to believe the phones may have been used in furtherance of the indicted drug conspiracy offenses. Like a computer hard drive, cell phones contain personal information, contacts, text messages, photographs, and other data maintained in electronic form. Also as in Mitchell, the government in the instant case has offered no substantial justification for its failure to obtain the warrants for more than ninety days, well in excess of the twenty-one days in Mitchell. Indeed, the government has offered no justification at all for the delay. Rather, the government relies primarily on the argument that Defendant did not ask for the return of his property and on the contention that the cell phones could be detained because they possessed evidentiary value in and of themselves, regardless of any information contained within them. Govt. Brief at 7, [Doc. 485].

. . .

With regard to the absence of any request for return of the property, there is no evidence that such a request was made in this case, or, for that matter, in Mitchell. Because this fact was not discussed or noted in Mitchell, the failure to request return would not appear to have figured significantly, if at all, in the Court’s analysis. Likewise, the failure by Defendant to request return of his cell phones in this case should not change the result here.

As for the argument that the phones were evidence “in and of themselves” warranting indefinite detention, the government does not explain exactly how the phones would fall into such a category, or cite any authority for such a proposition. The phones were not in and of themselves contraband, nor was their evidentiary value readily apparent without regard to other information to be obtained from the phones. By extension of the government’s logic, the hard drive in Mitchell could be considered evidence “in and of itself” subject to indefinite detention without a warrant because there was probable cause to believe it was used to facilitate the possession of child pornography.

Defendant certainly had a possessory interest in his personal property – his cell phones – that was significantly interfered with for more than ninety days, without Defendant’s consent, before the government got around to obtaining a warrant. The fact that the Defendant was detained without bond and could not, himself, have accepted the return of the property does not equate with the government’s right to exclude him or his designee from his property indefinitely without a warrant. Furthermore, the government has offered no justification or rationale for the delay. In short, the undersigned, applying the rule of reasonableness announced in Mitchell, concludes that the government’s delay in the instant case was certainly as unreasonable, if not more unreasonable, than was the delay in Mitchell under substantially similar circumstances.

Accordingly, the undersigned RECOMMENDS that the motions to suppress, [Docs. 362, 338], be GRANTED and that the evidence obtained from the cell phones be suppressed.