D.D.C.: 15 mo delay in cell phone search unreasonable and not saved by GFE

The government’s 15 month delay in searching defendant’s cell phone was unjustified and was not saved by the good faith exception. United States v. Wilkins, 2021 U.S. Dist. LEXIS 89419 (D.D.C. May 11, 2021):

In Leon, the Supreme Court held a good faith exception to the exclusionary rule exists such that, “suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” Leon, 468 U.S. at 926. The Government argues that none of the exceptions to the good faith rule apply to the instant case, meaning that the ZTE Warrant need not be suppressed. But this analysis misunderstands the source of the constitutional violation at issue. The Leon good faith exception applies to defects that arise under the search warrant process, not unconstitutional seizures. And the Supreme Court has held that the proper remedy for an unreasonably long delay in obtaining a warrant following a seizure under the Fourth Amendment is suppression of the evidence. Segura, 468 U.S. at 812; Burgard, 675 F.3d. at 1035. Procuring a late-obtained warrant cannot be enough to remedy this type of unreasonable delay, because by merit of the type of violation at issue a warrant is always eventually obtained—meaning under this logic the exclusionary rule could not ever operate to deter this Fourth Amendment violation. See Burgard, 675 F. 3d at 1035 (noting the proper inquiry is “not whether police ultimately obtained a warrant; it is whether they failed to do so within a reasonable time.”).

Indeed, the Seventh and Ninth Circuits, the only two courts that appear to have specifically addressed this issue, have both declined to apply the good faith exception to cases of an unreasonably prolonged seizure. See, e.g., Burgard, 675 F. 3d at 1035 (“When an officer waits an unreasonably long time to obtain a search warrant, in violation of the Fourth Amendment, he cannot seek to have evidence admitted simply by pointing to that late-obtained warrant.”); United States v. Song Ja Cha, 597 F.3d 995, 1006 (9th Cir. 2010) (“[T]he exclusionary rule is applicable where seizures are unconstitutionally long” to “deter unreasonable police behavior and to provide for judicial determination of probable cause.”). As the Ninth Circuit went on to explain, law enforcement are presumed to be aware of the law that a seizure must last “no longer than reasonably necessary for the police, acting with diligence, to obtain a warrant.” Id. at 1005 (citing Illinois v. McArthur, 531 U.S. 326, 332, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001)). As a result, the application of the good faith exception would be inappropriate because this type of Fourth Amendment violation is “sufficiently deliberate that exclusion can meaningfully deter it” and “deterrence is worth the price paid by the justice system.” Id. at 1004. An examination of the policy implications of allowing the good faith exception here also helps to explain why the Court finds exclusion to be appropriate. As the Burgard court aptly noted, allowing a “good faith” exception to apply “would eliminate the [exclusionary] rule’s deterrent effect on unreasonably long seizures. Police could seize any item—a phone, a computer, a briefcase, or even a house—for an unreasonably long time without concern for the consequences, evidentiary and otherwise.” 675 F.3d at 1035; Song Ja Cha, 597 F.3d at 1005 (“To create [such] an exception . . . would defeat the purpose of the exclusionary rule …”). This fear is exactly what has materialized here, with law enforcement seizing Mr. Wilkins’s phone and holding it for well over a year until the search was ordered. Such an outcome cannot possibly be in accord with the basic protections of the Fourth Amendment. Therefore, as a matter of both law and policy, the Court finds that the Good Faith exception does not apply.

Consequently, the Court will grant Mr. Wilkins’s motion to suppress the tangible evidence obtained from the illegal search of the ZTE phone. However, it appears that this finding may have little practical effect. The Government represents that the warrant for Mr. Wilkins’s ZTE phone bore no poisonous fruit, in that the Government did not rely on any unique evidence found on the ZTE phone to obtain any subsequent warrants. Hr’g Tr. at 44. This is because a warrant for one of the complainant’s phones was authorized at the same time the warrant for the ZTE phone was approved, and all of the relevant evidence from Mr. Wilkins’s ZTE phone was also found on the complainant’s phone. Id. Accordingly, the Government argues, there is no way the illegal ZTE search could have tainted any subsequent evidence obtained in the case. Hr’g Tr. at 44. The Court is not so sure. Given the general paucity of detailed information before the Court at this time, it will grant Mr. Wilkins’s counsel the opportunity to submit additional briefing on this topic to articulate what evidence, if any, should be excluded as fruit of the illegal search of the ZTE phone.