Defendant was in U.S. diplomatic service in Mexico, and he was accused of sex with drugged women there. Proof was ultimately found on his phone with a search warrant on his return to the U.S. Officers returned to his hotel in Virginia to get his passcode for the phone representing the warrant required it. It did not. This search of the phone was unreasonable and not protected by the good faith exception. Later searches, however, were independently justified. United States v. Raymond, 2023 U.S. Dist. LEXIS 190928 (D.D.C. Oct. 24, 2023):
Upon exhaustive review of the record, the pleadings, and the applicable legal authority, the Court concludes that compelling Defendant to unlock his phones using passcodes exceeded the scope of an already-executed warrant, and that law enforcement acted in, at best, reckless disregard of Defendant’s Fourth Amendment rights. Therefore, the Court must exclude the evidence obtained from Defendant’s phones. That said, the unconstitutional taint of law enforcement’s unlawful conduct does not so infect subsequent warrants, which rest on independent grounds for probable cause, as to require the suppression of documentary and videographic evidence obtained beyond Defendant’s phones. Lastly, the Court perceives no Fifth Amendment violation. As such, and in sum, the Court shall GRANT IN PART AND DENY IN PART Defendant’s Motion to Suppress.
. . .
Some jurisdictions, however, have blessed a limited gloss on this rule, permitting law enforcement to “pause” the execution of a search, even after discovering the material to be seized, and to return to the execution of the warrant at some later point. This gloss, not yet recognized by this Circuit, is termed the “reasonable continuation” doctrine. Shamaeizadeh v. Cunigan, 338 F.3d 535, 547 n.5 (6th Cir. 2003). Under this “reasonable continuation” doctrine, law enforcement may pause the execution of a warrant and return to it later so long as the suspension of the search is (1) reasonable under the totality of the circumstances and (2) not, in fact, a new search. United States v. Keszthelyi, 308 F.3d 557, 571-72 (6th Cir. 2002). The basis for this doctrine is understandable. So long as law enforcement otherwise complies with a warrant’s requirements, law enforcement is due some deference in how to execute it. See Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979). Sometimes, law enforcement will encounter unforeseen challenges that will prevent them from fully executing the warrant and will want to confer with others on the challenge before them. See United States v. Hendley, Crim. Case No. 14-353-ODE-JSA, 2015 U.S. Dist. LEXIS 162152, 2015 WL 13736219, at *8 (N.D. Ga. Oct. 19, 2015); cf. also United States v. Whitfield, 629 F.2d 136, 141, 203 U.S. App. D.C. 102 (D.C. Cir. 1980) (in context of exigent search of automobile, holding that exigency does not necessarily “disappear[] when the police decide in good faith to delay their search for a more opportune time or place”).
The Government contends that this is such a case. Agent Gajkowski did not actually force Defendant to apply his biometrics to the phones before concluding the first interaction, and the prosecutor was evidently surprised to learn that Agent Gajkowski concluded that biometrics would fail given Defendant’s use of passcodes on both phones. So, the argument goes, law enforcement was due another shot at executing the biometrics provision of the warrant.
To bolster the point, the Government relies mainly on two sets of cases. The first holds that law enforcement may return when they realize they inadvertently had not seized all items that they were obligated to seize under the terms of the warrant. See, e.g., Kaplan, 895 F.2d at 623. The second involves logistical challenges. See United States v. Gerber, 994 F.2d 1556, 1557-59 (11th Cir. 1993). In Gerber, a warrant issued directing law enforcement to search the interior of a car. Id. at 1557. Law enforcement searched some of the car, but stopped when they arrived at the car’s engine block. Id. The hood would not open without a crowbar, so law enforcement returned three days later, thinking the subsequent search of the engine block lawful even though the warrant had expired three days earlier. Id. This second visit was a continuation of the first, the Eleventh Circuit held, because law enforcement announced that they purposefully intended to pause the search and they believed, evidently in good faith, that the warrant was still active at the time of the second visit. Id. at 1561.
Assuming arguendo that the continuation doctrine is good law in this Circuit, neither category of cases applies here. First and foremost, Agent Gajkowski affirmatively announced that the warrant had been executed at the conclusion of law enforcement’s first interaction with Defendant. June 6, 2020 Interview of Brian Raymond (“Interview Tr.”), Ex. E, ECF No. 119-5 at 220:8-10. Agent Gajkowski was correct in saying so–law enforcement had finished seizing all items described in the warrant. The plain text of the warrant was also clear that it had been executed. Law enforcement was “authorized to [use biometrics]” “[d]uring the execution of the search of” the phones. Gov.’s Ex. 4B Attach. B at 2. The “search” to be executed was “the seizure” of the phones, which would later be subject to forensic examination. Id. Attach. A at 2.
Moreover, unlike in Gerber, law enforcement was not met by an unexpected, surmountable challenge. They were faced with passcodes that they anticipated Defendant might have activated, and acknowledged that their form of crowbar, biometrics, would not work under that circumstance. Nevertheless, despite understanding that they had executed the warrant and that a return trip would be futile, Agents Gajkowski and Nelson went one step further to compel not just biometrics but also Defendant’s entry of his passcodes, decidedly beyond the scope of the warrant and contrary to explicit instructions from the prosecutor to Agent Gajkowski before the execution of the warrant. That is not a reasonable, good faith extension of a half-executed warrant. That is a futile, illegal attempt to reanimate a warrant whose authority had already lapsed. Accordingly, the second and third interactions with Defendant were warrantless.
Update: techdirt: Court: You Can’t Add A Lie To An Already-Executed Warrant And Expect Everything To Be Constitutional by Tim Cushing
