M.D.Pa.: Cut-and-paste errors and delay in execution and discovery results in suppression of cell phone

A Franks violation from cut-and-paste of another cell phone search affidavit resulted in serious factual errors in this one. Coupled with the government’s late disclosure of the phone’s contents despite a date certain trial, the court concludes the exclusionary rule should be applied. United States v. Brown, 2023 U.S. Dist. LEXIS 224158 (M.D. Pa. Dec. 15, 2023):

Lastly, we are troubled by the government’s efforts to chalk up the misstatements in its submissions to the court as “simple mistake[s]” and “Scrivener’s error[s].” (See Doc. 93 at 8, 10). Agent Byrne’s affidavit of probable cause was plagued by more than the typographical error about what month the seizure occurred (April versus May). It also contained substantive misrepresentations about the investigative techniques supporting the warrant application, namely that it was “based on personal knowledge derived from … debriefings conducted by [Agent Byrne] or other law enforcement officers of confidential sources regarding this investigation, telephone toll analysis, and an active Title III wire intercept.” (See Doc. 94-2 ¶ 3). None of that was true, as the government now concedes. (See Doc. 93 at 7-8 (acknowledging false bases of fact resulted from “using a previous affidavit as a template”)). We appreciate the government’s candor, but its lackadaisical approach to investigating this case does not inspire confidence in the accuracy of its representations to the court. Given the substantial delay, the government’s lack of diligence, and the late hour at which it disclosed the cell phone evidence to Brown on the eve of a date-certain trial that was scheduled more than five months ago, application of the exclusionary rule is warranted.