M.D.Fla.: Exclusionary rule applies to overseizure of tracking information, but blanket suppression not required

There was probable cause for issuance of historical cell phone tracking information and connecting defendant to the phone. The affidavit, however, only sought information for one day, but the warrant covered seven days. The overseizure is suppressed because the exclusionary rule applies because there is appreciable deterrent effect because this was a mistake of the officer. Moreover, the government’s need for all this evidence isn’t all that substantial. Blanket suppression is denied. United States v. Bouknight, 2020 U.S. Dist. LEXIS 104478 (M.D. Fla. June 15, 2020). As to application of the exclusionary rule:

Applying the principles set forth above, the Court finds that application of the exclusionary rule is warranted in this case. Regarding the first condition, that there must be misconduct by the police or by adjuncts to the law enforcement team, the conduct at issue here is the failure to read the Bouknight Warrant after the issuing judge signed it. There is no dispute that this failure is attributable to a police officer, as opposed to a judicial officer. Although there is nothing in the record to suggest that the Applicant Officer’s failure to read the Bouknight Warrant before sending it to T-Mobile was intentional misconduct, the Court finds that it was at least reckless. Notably, if the Applicant Officer had read the Bouknight Warrant again after receiving it from the judge, he would have realized his apparent drafting mistake, and he could have presented it to the issuing judge to determine whether she actually intended to limit the search to September 6th as stated in the Bouknight Warrant. What the government seems to suggest is that the failure to read the warrant was of no consequence because having drafted the Bouknight Affidavit and Warrant, as well as the Graham Affidavit and Warrant, the Applicant Officer knew what data he intended to obtain. But what matters is not what the officer sought to obtain or even what he intended to obtain, but rather what matters is what the judicial officer authorized him to obtain. If the Applicant Officer had testified that he read the Bouknight Warrant, noticed that it was limited to September 6th, but decided to proceed to collect data for the entire period of September 1st through September 7th because that was what he sought in the Bouknight Affidavit, the government would have been hard pressed to find a basis to defend a knowing disregard of the actual language of the Bouknight Warrant. It can fare no better, by relying on a failure to read the Bouknight Warrant at all. Thus, the Court finds that the first condition is present in this case.

Turning to the second condition, the Court finds that application of the exclusionary rule in this case likely would result in appreciable deterrence of future, similar misconduct. The Court is cognizant of the Eleventh Circuit’s caution in Herring I that “[d]eterrents work best where the targeted conduct results from conscious decision making, because only if the decision maker considers the possible results of [his] actions can [he] be deterred.” See Herring I, 492 F.3d at 1218. However, the Court finds the behavior to be deterred in this case is easily distinguishable from that at issue in Herring I where the Eleventh Circuit held that exclusion of evidence resulting from negligent record keeping was unlikely to reduce any future negligence, because, among other things, the negligent conduct was committed by officers of a different department in another county. See id. Here, the failure, while likely not actively intentional, was entirely and conspicuously within the control of the Applicant Officer. The Court is of the view that exclusion of the data not explicitly authorized by the Bouknight Warrant under these circumstances will significantly deter the Applicant Officer and others from failing to read a warrant before executing it.

As for the third condition, the Court determines that the deterrence resulting from the application of the exclusionary rule in this case will outweigh the cost of excluding the data not authorized by the warrant—data from September 1st through 5th and the 7th. In this regard the Court notes that the government stated at the supplemental evidentiary hearing that it did not intend to use data from September 1st through 5th or the 7th at trial. …