U.S. v. Davis

• Citation: 787 F.Supp.2d 1165
• Decision Date: 07 April 2011
• Docket Number: Crim No. 10–339–HA.
• Parties: UNITED STATES of America, Plaintiff,v.Jefferson Bryant DAVIS, Defendant.
• Court: U.S. District Court — District of Oregon

787 F.Supp.2d 1165

UNITED STATES of America, Plaintiff,

v.Jefferson Bryant DAVIS, Defendant.

Crim No. 10–339–HA.

United States District Court, D. Oregon.

April 7, 2011.

Kemp L. Strickland, United States Attorney's Office, Portland, OR, for Plaintiff.Steven Jacobson, Office of the Federal Public Defender, Portland, OR, for Defendant.

OPINION AND ORDER

HAGGERTY, District Judge:

Defendant Jefferson Bryant Davis is charged with six counts related to the sex trafficking of minors. Defendant filed a Motion to Suppress Evidence [23]. This court held evidentiary hearings on March 28 and 29, 2011, at which law enforcement officers, a defense investigator, and defendant presented testimony. For the following reasons, defendant's Motion to Suppress is GRANTED IN PART. Additional evidence is required to resolve the remaining aspects of defendant's motion.

BACKGROUND

Early on November 1, 2009, Portland Police Officer Gary Doran observed a maroon Pontiac automobile (Pontiac) driving at a high rate of speed on the freeway off-ramp of I–205. Officer Doran was driving eastbound on SE Washington Street toward a light-controlled intersection where the freeway off-ramp meets the street. The light was green for Officer Doran's direction of travel, and red for the Pontiac. Officer Doran observed the Pontiac run through the red light. He noticed that the driver was an African–American male wearing a red sweatshirt, and that his passenger was also an African–American male wearing a black sweatshirt.

Officer Doran pursued the Pontiac with his overhead lights and siren activated. The Pontiac rolled through another red light and turned left onto SE Stark Street. The Pontiac accelerated and ran through a third red light where SE Stark Street meets the southbound off-ramp of I–205. Officer Doran radioed that he was in pursuit of a reckless driver.

The Pontiac ran a fourth red light at SE Stark Street and 92nd Avenue. As the Pontiac approached 82nd Avenue, Officer Doran decided to terminate the high speed chase, radioed for assistance, and slowed his car. The Pontiac continued towards 82nd Avenue, but the driver began to lose control. The Pontiac fish-tailed through the intersection, drove onto the sidewalk, hit a wall, and crashed into a parked truck. Officer Doran reactivated his lights and siren as he approached the crash. As the driver and passenger exited the Pontiac, Officer Doran shouted “Stop! Police! You are under arrest!” The driver and passenger ran west on SE Stark Street. Officer Doran tried to pursue them, but lost sight of the men as they rounded the corner at 78th Avenue.

Additional police officers arrived. Officer Doran saw an African–American male (defendant) wearing a white tank top running across the 8000 block of SE Washington Street. Several officers took defendant into custody, patted him down for weapons, and put him in the patrol car. The officers asked defendant if he was in the car that crashed, and defendant denied any involvement.

The officers searched the area. They found a red sweatshirt, but no sign of the passenger. One of the officers transported defendant to the East Precinct.

Officer Doran walked over to the Pontiac and noticed that the doors were open. He heard a cellular telephone (phone) ringing. He also saw papers bearing the names of defendant and Ellis Mathews, photographs of children, high heels, and a receipt from a jewelry store with defendant's name. Officer Doran removed the photos, receipt, and phone, and placed them in his patrol car. Officer Doran then drove to the East Precinct to confirm if the man in custody was the man he observed in the Pontiac.

While driving to the precinct, the seized phone rang repeatedly. Officer Doran answered the phone by saying “what's up.” A female voice asked “where are you” or “who is this?” The record is unclear whether the female or Officer Doran hung up the phone. Officer Doran then called the number back using the seized phone and heard a message recording for the Montavilla Motel, located at 320 SE 99th Avenue. At some point, Officer Doran searched the phone and noticed that about a dozen calls had come in to the phone from the Montavilla Motel number. Believing that the driver or passenger of the Pontiac could be located at the motel, Officer Doran diverted his route to visit the Montavilla Motel.

At the motel, Officer Doran spoke to the manager. Based on the names obtained from the papers in the Pontiac, Officer Doran asked the manager if defendant or Ellis Mathews had rented a room at the motel. The manager told Officer Doran that Ellis Mathews had rented room 45, and that Mathews was the only person listed on the registration. Officer Doran then requested a key for room 45 because he had heard a female's voice on the phone, and believed that she was trespassing.

The officers knocked on the door of room 45. Two juvenile girls, VCC and CM, answered the door. The officers told the girls that they were trespassing, and asked for their names. After the girls identified themselves, the officers learned that they were listed as missing in the law enforcement data system. When questioned, the girls said they were waiting for “a black guy named J.B.”

The officers showed the girls a photograph of defendant, and the girls identified him as “J.B.” The girls told the officers that “J.B.” was wearing a red sweatshirt and drove a maroon car. The officers found one condom in each of the girls' pockets. The girls said that “J.B.” made them buy condoms at the 7–11 store. Both girls were then transported to the East Precinct.

When he arrived at the precinct, Officer Doran provided defendant with warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and interrogated him. Defendant admitted to driving the Pontiac. He denied having a passenger in the car. Officer Doran asked defendant if he owned the seized phone. Defendant said yes, and thanked the officer for returning the phone.

Two officers then interviewed the girls. The girls explained that defendant bought new clothing for the girls (including underwear, high-heeled shoes, pants, and jackets) and gave them money to buy condoms. No statements regarding prostitution or sex trafficking were made at this time.

Several months later, VCC voluntarily turned herself in as a runaway in California. She was brought to Oregon and interviewed by Detective Jeff Staples of the Salem Police department. She did not admit any involvement in prostitution. Two weeks later, VCC ran away from home again. She was later picked up at a transit station by Salem Police Officer Stephen Chancellor, who brought her into the adjacent satellite office for the Salem Police. While waiting for VCC's parents, Officer Chancellor spoke with VCC about the circumstances that caused her to run away. During that conversation, VCC made incriminating statements against defendant.

DISCUSSION

Defendant moves to suppress all physical evidence and statements obtained as a result of the warrantless search and seizure of his phone. The government attempts to justify the search based on several exceptions to the warrant requirement, and asserts that the statements made by VCC and CM were sufficiently attenuated from the illegal search to be admissible.

1. Initial seizure of the phone

Although defendant did not initially challenge the constitutionality of the seizure of his phone, he raised that argument during the second evidentiary hearing. Nevertheless, this court concludes that the phone was lawfully seized as part of an inventory search before the crashed vehicle was towed away. See United States v. Caseres, 533 F.3d 1064, 1074 (9th Cir.2008) (holding that the police may perform an inventory search of a lawfully impounded vehicle for the purpose of determining its condition and contents at the time of impounding). Officer Doran testified that the Portland Police Bureau has a policy that requires officers to collect any valuable items from a vehicle before it is towed. This policy is sufficient to justify an inventory search. United States v. Penn, 233 F.3d 1111, 1116–17 (9th Cir.2000).

However, a lawful inventory search does not authorize an officer to examine the contents of a cell phone. United States v. Wall, No. 08–60016–CR, 2008 WL 5381412, at *3–4 (S.D.Fla. Dec. 22, 2008) (declining to justify search of cell phone as an inventory search because the officers had no need to document the phone numbers, messages, and other data to properly identify the suspect's property). Therefore, the issue presented is whether the government can prove, by a preponderance of the evidence, that the subsequent search of the phone was justified by an exception to the warrant requirement.

2. Search of the phone

A person has a reasonable expectation of privacy in his or her personal cell phone, including call records and text messages. United States v. Finley, 477 F.3d 250, 259–60 (5th Cir.2007); see also City of Ontario, Cal. v. Quon, ––– U.S. ––––, 130 S.Ct. 2619, 2630, 177 L.Ed.2d 216 (2010) (“Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy.”). Accordingly, the government may not answer a defendant's cell phone absent a warrant or an exception to the warrant requirement. United States v. Kim, 803 F.Supp. 352, 361–62 (D.Haw.1992) (holding that a lawfully seized cell phone was improperly searched when an officer answered the defendant's ringing phone without a warrant); see also United States v. Mercado–Nava, 486 F.Supp.2d 1271, 1277–79 (D.Kan.2007) (applying general warrant requirements to searches of cell phones).

Courts have generally permitted law enforcement officers to conduct warrantless searches of cell phones in cases involving drug-trafficking, where evidence of the crime is likely stored on the phones....