United States v. Berroa
| Decision Date | 15 January 2021 |
| Docket Number | Criminal Action No. 19-cr-10164-ADB |
| Parties | UNITED STATES OF AMERICA v. LUIS BERROA, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
BURROUGHS, D.J.
Defendant Luis Berroa ("Defendant") has moved to suppress evidence obtained from the search of his Samsung Galaxy S8 cellphone (the "Phone"), which was seized during a search of 3 Newton Street, Apartment No. 2 in Lawrence, Massachusetts ("3 Newton Street"). [ECF No. 81]. Defendant argues that the search was unreasonable and violated the Fourth Amendment because the investigating authorities seized the Phone on March 13, 2019 but did not apply for a warrant to search its contents for more than a year. See generally [ECF No. 82]. For the reasons outlined below, Defendant's motion to suppress, [ECF No. 81], is DENIED.
The parties do not dispute the relevant facts, which the Court draws from the affidavits and exhibits that the parties have filed in connection with the instant motion and an earlier motion to suppress, [ECF No. 64].1
On March 12, 2019, Magistrate Judge Dein issued a search warrant permitting agents from the Drug Enforcement Administration ("DEA") to search 3 Newton Street and "certain telephones located in or on the premises" (the "March 2019 Warrant"). [ECF No. 66-1 at 1]. The Phone was not among the telephones identified in the warrant. See [id.]. The next day, DEA agents executed the search on 3 Newton Street as authorized by the March 2019 Warrant. [ECF No. 84-1 ¶ 8]. In one of the bedrooms, the agents found Defendant, who was sleeping, as well as fentanyl, guns, and the Phone. [Id. ¶¶ 8-9]. The agents arrested Defendant and seized the Phone.2 [Id. ¶¶ 8, 11]. On May 15, 2019, a grand jury indicted Defendant on drug and gun offenses. [ECF No. 16]. On June 10, 2020, DEA Special Agent Raymond R. Greene applied for a warrant to search the contents of the Phone, [ECF No. 84-2], which was issued by Magistrate Judge Dein the same day (the "June 2020 Warrant"), [ECF No. 84-3]. The Government searched the Phone in September 2020, [ECF No. 87 at 4], and then produced the contents, which totaled approximately 22,000 pages, to Defendant on October 5, 2020, [ECF No. 81-1 ¶ 5].
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. "The Fourth Amendment itself 'contains no requirements about when the search or seizure is to occur or the duration.'" United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (quoting United States v. Gerber, 994 F.2d 1556, 1559-60 (11th Cir. 1993)).
It is common for the police to temporarily seize a suspect's personal property if they have probable cause and intend to apply for a warrant to search the property for evidence of a crime. When the police do so, however, the Fourth Amendment requires that they act with diligence to apply for a search warrant.
United States v. Smith, 967 F.3d 198, 202 (2d Cir. 2020); see also United States v. Gomes, 330 F. Supp. 3d 720, 731 (D.R.I. 2018) . "The reasonableness of the delay is determined 'in light of all the facts and circumstances,' and 'on a case-by-case basis.'" United States v. Mitchell, 565 F.3d 1347, 1351 (11th Cir. 2009) (quoting United States v. Mayomi, 873 F.2d 1049, 1054 n.6 (7th Cir. 1989)); see also Gomes, 330 F. Supp. 3d at 731 ( .
United States v. Cruz-Mercedes, 945 F.3d 569, 576 (1st Cir. 2019) (alterations in original) (internal citations and quotation marks omitted).
If a warrant authorizes the search, law enforcement must comply with Federal Rule of Criminal Procedure 41(e)(2)(A)(i) by executing the warrant "within a specified time no longer than 14 days." Fed. R. Crim. P. 41(e)(2)(A)(i). With respect to electronically stored information, the "time for executing the warrant in Rule 41(e)(2)(A) . . . refers to the seizure oron-site copying of the media or information, and not to any later off-site copying or review." Fed. R. Crim. P. 41(e)(2)(B).
Defendant asserts that the approximately fifteen-month delay between the March 13, 2019 seizure of the Phone and the June 10, 2020 application for a warrant to search it was unreasonable; that he was prejudiced by such delay; and that therefore, the evidence derived from that search should be suppressed. See generally [ECF No. 82]. The Government counters that the search of the Phone was authorized by the March 2019 Warrant; that the delay in searching the Phone was reasonable under the circumstances; that Defendant suffered no prejudice; and that, even if the search is deemed unreasonable, application of the exclusionary rule is inappropriate under the circumstances of this case. See generally [ECF No. 87].
As a preliminary matter, the Government argues that its search of the Phone was explicitly authorized by the March 2019 Warrant and that it applied for the June 2020 Warrant only "out of an abundance of caution." [ECF No. 87 at 1-2, 4-5]. Paragraph 7 of Attachment B (the Description of the Items to be Seized) to the March 2019 Warrant reads:
[c]ellular telephones in the possession of or used by Encebio ESPERITUSANTO, Brayan LEBRON, or Giovanni BAUTISTA, and all names, words, telephone numbers, email addresses, time/date information, messages or other electronic data relating to or referencing drug trafficking and/or referencing individuals engaged in drug trafficking, located in the memory of any mobile telephone, from January 1, 2018 until the present, including but not limited to: . . .
[ECF No. 66-1 at 5 (emphasis added)]. The Government asserts that the phrase "of any mobile telephone" means that the March 2019 Warrant authorized the search of the contents of any cellphone found during the search of 3 Newton Street pursuant to the March 2019 Warrant. [ECF No. 87 at 4-5]. The Court disagrees. The March 2019 Warrant authorizes the seizure and search of "[c]ellular telephones in the possession of or used by Encebio ESPERITUSANTO,Brayan LEBRON, or Giovanni BAUTISTA." [ECF No. 66-1 at 5]. The subsequent phrase "any mobile telephone" applies to mobile phones possessed or used by those three individuals. Although the Government might have intended to ask for authority to seize and search all phones located in the residence (including the Phone), the language is not clear enough to allow the seizure and search of mobile phones that are not associated with the three named individuals. Because the Court finds that the March 2019 Warrant did not authorize the seizure or search of the Phone, the instant motion turns on whether the fifteen-month delay between the March 13, 2019 seizure—which, though not pursuant to a warrant, is assumed to be lawful for present purposes—and the June 10, 2020 warrant application was unreasonable and, if so, whether suppression is an appropriate remedy.
Defendant does not dispute that there was probable cause supporting the issuance of the June 2020 Warrant or argue that the probable cause was stale. See generally [ECF No. 82]. Rather, he argues only that it was unreasonable to wait fifteen months after seizing the Phone to seek a warrant to search it.
In support of his argument, Defendant relies primarily on United States v. Smith, a recent Second Circuit case. See [ECF No. 82 at 5-17]. In that case, a police officer, after seeing what he believed to be child pornography on the tablet of a man suspected of drunk driving, arrested the suspect and seized his tablet but waited thirty-one days before applying for a warrant to search its contents. Smith, 967 F.3d at 202. Subsequently, the defendant moved to suppress the child pornography that was found on his tablet, arguing that the delay between the seizure and the search warrant application was unreasonable. See id. at 203. The Second Circuit held that the delay was unreasonable and violated the Fourth Amendment but nevertheless declined to apply the exclusionary rule "because the error by the police was due to isolated negligence andbecause an objectively reasonable officer would not have known in light of existing precedent that the delay violated the Fourth Amendment." Id. at 202. In reaching this conclusion, the court considered four factors in evaluating whether the delay was unreasonable: "(1) the length of the delay, (2) the importance of the seized property to the defendant, (3) whether the defendant had a reduced property interest in the seized items, and (4) the strength of the state's justification for the delay." Id. at 203.
Although Smith is factually distinguishable from this case for a number of reasons,3 the Court still finds the general analytical framework employed by the Second Circuit instructive. Accordingly,...
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