D.Md.: Six-year delay in getting SW for cell phone unreasonable

Officers had defendant’s cell phone for nearly six years from 2015 to 2020, and he was in custody for much of the time. Searching the cell phone six years after seizure was unreasonable. United States v. Briscoe, 2022 U.S. Dist. LEXIS 17895 (D.Md. Feb. 1, 2022):

The United States District Court for the Southern District of Iowa, however, has recently concluded “that an objectively reasonable officer would have known that the delay, which the court found in this case was anywhere for 4 months to 27 months, amounted to a violation of the Fourth Amendment. … It is a situation in which the unreasonableness of the delay is patently obvious. Therefore, exclusion is the appropriate remedy.” United States v. Nguyen, No. 1:19-cr-00004-JAJ-HCA-2, 2021 U.S. Dist. LEXIS 70671, at *10 (S.D. Iowa Mar. 16, 2021).

The Government cites this Court’s decision in United States v. Dorsey, No. RDB-18-0347, 2019 U.S. Dist. LEXIS 136887, at *16 (D. Md. Aug. 13, 2019) to support its position that the six-year delay in this case between the seizure of the phone and the application for the federal search warrant was not unreasonable. In Dorsey, the delay in question was 53 days. The Government cites to no case in which a court has upheld as reasonable a delay even close to six years.

While it is true that the Defendant was incarcerated during much of the period between 2015 and 2020, and it is true that he never asked officers to return his phone, his diminished possessory interest cannot mitigate such an unreasonably lengthy delay. While the Smith factors are not binding on this Court, they are instructive. Here, as in Tisdol, three of the four Smith factors favor the Defendant. Only the Defendant’s reduced possessory interest in the phone weighs in favor of the Government. In this case, however, this Court is presented not with a one-month delay or a three-month delay, but with a seventy-three-month delay. This Court concludes that the delay between the seizure of the phone and the execution of the federal search warrant was unreasonable and impermissibly infringed on the Defendant’s possessory interest in the phone. Accordingly, the Defendant’s Motion to Suppress July 2021 Cell Search is GRANTED, and the Government will be precluded from introducing any evidence recovered from the extraction of the phone.