N.D.Ga.: Govt bore burden of proof on inevitable discovery and failed; weak hearsay not credited

The issue of inevitable discovery was treated as an aside by the government, although it bore the burden of proof on it. It seeks the use of hearsay on inevitable discovery that was hard to credit considering the posture of the case. United States v. Ansah, 2018 U.S. Dist. LEXIS 117417 (N.D. Ga. July 16, 2018):

The Government has simply not met this burden of proof. The issue of inevitable discovery was treated as somewhat of an aside at the hearing, with a total of two substantive questions and answers. The gist of this minimal testimony was that Inspector Petronis introduced the conclusory and entirely unexplained opinions of an unnamed computer analyst, for the bald assertion that “we would be able to get into the phone without the password.” The only fact introduced in this exchange was that this process would use “something called Cellebrite.” Inspector Petronis had no apparent knowledge about anything that he was being asked about, and was simply repeating what this unknown analyst with unknown qualifications stated at some unknown time.

The Court is mindful that the rules of evidence do not strictly apply at pretrial suppression hearings, and that “[p]reliminary questions concerning … the admissibility of evidence shall be determined by the court…. In making its determination it is not bound by the rules of evidence except those with respect to privileges.” Fed.R.Evid. 104(a). Nevertheless, the Court has the discretion to decline to give weight to evidence that lacks sufficient substance or foundation. Here, the Court was essentially provided with the bare hearsay conclusion of an unknown witness without any explanation about a complicated technical matter. The Court simply cannot attach much weight to this statement. Because this is a matter as to which the Government bears the burden of proof, the Court cannot rest a denial of suppression on the inevitability doctrine on this record.

Moreover, even if some analyst now retrospectively opines that there would have been other ways to access the phone, that assertion itself (even if credited) does not establish every element of the inevitability doctrine. The Government offered no testimony to show that these means (whether “Cellebrite” or otherwise) were available during the period authorized by the search, that this unnamed forensic analyst or another one with similar knowledge would have been involved in the execution of the search, or more generally that any of these tools or methods were part of the search protocol and procedures at the time or otherwise likely would have been utilized during this search. Without more facts and support, the Government’s inevitability argument simply falls short.