United States v. Eldarir
| Docket Number | 20-CR-243 (LDH) |
| Decision Date | 06 July 2023 |
| Parties | UNITED STATES OF AMERICA, v. ASHRAF OMAR ELDARIR, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
On January 22, 2020, Ashraf Omar Eldarir (“Defendant”) was arrested at John F. Kennedy International Airport (“JFK”) on suspicion of illegally transporting Egyptian artifacts. Prior to his arrest, Defendant was subjected to a border search by U.S Customs and Border Patrol (“CBP”), which included a warrantless search of Defendant's iPhone. Defendant was later charged with two counts of smuggling, in violation of 18 U.S.C. § 545. (Indictment, ECF No. 9.) Defendant now moves to suppress the evidence seized from his iPhone, and any fruits of that evidence, on Fourth and Fifth Amendment grounds. (Def.'s Mem. Law Supp. Mot. Suppress (“Def.'s Mot. Suppress”), ECF. No. 35.)
BACKGROUND [1]
In January 2020, the United States Department of Homeland Security, Homeland Security Investigations (“HSI”), began investigating Defendant after “receiving information that [Defendant] ha[d] been selling Egyptian antiques of suspicious provenance from as early as 2013.” (Aff. Supp. Warrant ¶ 14, ECF No 35-3.) Defendant, a United States citizen and resident of Brooklyn, travels to Egypt frequently through JFK. (Id. ¶ 15.) On or about January 22, 2020, while Defendant was returning to the United States from an international trip to Egypt, CBP agents stopped Defendant at JFK at the direction of HSI. (Id. ¶ 16.) Defendant was traveling with one carry-on bag and three checked suitcases that he claimed at the baggage carousel. (Id.)
Agents directed him to a secondary customs screening area, where Defendant provided a written declaration stating that he was bringing goods valued at $300 into the country and, when asked, denied transporting artifacts into the United States. (Id.) At the secondary customs screening area, CBP agents examined Defendant's luggage and found “bubble and foam wrapped articles in all three checked suitcases.” (Id.) “Loose sand or dirt came out of the suitcases as they were opened and as the items were unwrapped,” with CPB agents noting that some of the items “smelled of wet earth.” (Id.) The agents found a total of 590 alleged artifacts in Defendant's suitcases. (Id.) The agents also found several documents listing previous sales of artifacts with Defendant's name on them, as well as provenances-documents that purport to provide a chronology of an item's ownership-that Defendant claimed were created by his grandfather dating back to the 1920s. (Id. ¶ 18.) The provenances were “written in Arabic on watermarked paper with stamps affixed on the top right of the documents, and two-hole punches along the left-hand side.” (Id.)
CBP agents also found in Defendant's luggage blank paper resembling that of the purported provenances, with the same watermark and two-hole punches along the left-hand side. (Id.) Thirteen loose stamps similar to the ones used on the provenances were also found. (Id.) According to the Government, the Arabic on some of the provenances found in Defendant's luggage was more modern and not in use during the time the provenances were allegedly written. (Id. ¶ 19.) The Government further contends that some of the stamps on the provenances appear to have been lifted off another document for reuse. (Id.) When asked if he had ever sold historical artifacts, Defendant stated “in sum and substance” that he had sold a few in the last few years. (Id. ¶ 17.)
CBP agents pulled artifacts out of Defendant's bags at the secondary customs screening area for about an hour. (Evid. Hearing Tr. 19:6-22, 107:6-8.) Then, agents walked Defendant to a separate, pat-down examination room. (Id. 19:6-22.) In the pat-down room, one of the agents picked up Defendant's cell phone, which was on a table, and asked Defendant for his passcode. (Def.'s Suppl. Mem. at 4, ECF No. 58; see also Tr. 110:11-18.) Defendant was subsequently Mirandized. (Def.'s Suppl. Mem. at 4.)
The agents then “manually searched” Defendant's phone, meaning they opened the device and viewed its contents as any regular user would. (Search and Seizure Warrant (“Warrant”), ¶ 20, ECF No. 35-2; see also Def.'s Mot. Suppress at 3.) The agents found additional evidence of artifact smuggling during this manual search in a WhatsApp album that contained photos of artifacts on the ground at night. (Warrant ¶ 20.) Defendant left the airport the same day. (Def.'s Suppl. Mem. at 4.) The Government forensically imaged Defendant's phone on January 23, 2020, which is akin to making a digital copy of the phone to freeze its contents. (Tr. 183:11-17.) The Government subsequently secured a warrant a couple of weeks later, on February 6, 2020, to conduct a forensic search of the phone. (See generally Warrant.) No forensic review of the phone was conducted prior to the warrant, meaning the Government did not review the forensic image at that time. (Id. 159:24-160:4.)
And, though the Government had Defendant's passcode, HSI agents would have been able to conduct a forensic search of the phone without it. (Id. 193:8-14.) Moreover, HSI Special Agent Igor Gamza, who obtained the warrant, testified that he would have sought a warrant independent of the evidence found during the manual search. (Tr. 160:17-24.) That is, based on the nearly 600 artifacts found in Defendant's belongings and the allegedly false statements he made during an interview with agents, Agent Igor would have sought the same warrant. (Id.) At the time, Agent Igor had been a special agent for four years and had experience investigating numerous cases of smuggling. (Warrant ¶ 2.) Based on his experience and training, the “use of WhatsApp to share and store photos is consistent with how artifacts looters communicate[.]” (Id. ¶ 20.)
DISCUSSION[2]
The Fifth Amendment of the Constitution prohibits the government from compelling any individual to be a witness against himself in a criminal case. U.S. Const. Amend. V. “Historically, [this] privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him.” Doe v. U.S., 487 U.S. 201, 212 (1988). As such, it is well-established that a prosecutor “may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). With that said, not all statements made in custody implicate a defendant's Fifth Amendment interests. Rather, the statement must also be “testimonial, incriminating, and compelled.” See Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt Cnty., 542 U.S. 177, 189 (2004).
Defendant argues that CBP officials infringed his Fifth Amendment privilege against self-incrimination when, without providing a Miranda warning, they directed him to furnish his own biometric information (i.e., a fingerprint) to gain access to the contents of his cell phone. (Def.'s Mot. Suppress at 4.) As Defendant sees it, “the requirement that [he] unlock and decrypt his cell phone was compulsive, testimonial, and self-incriminating.” (Id.) The Government, meanwhile, maintains that the Court need not even reach this question because, as a threshold matter, Defendant was never in custody for Fifth Amendment purposes. (See Gov't's Mem. Law. Opp'n to Def.'s Mot. Suppress (“Gov't Opp'n.”) at 7, ECF No. 36.) On this point, the Court disagrees.
As the Supreme Court has explained, “custodial interrogation . . . mean[s] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 386 U.S. at 444. A formal arrest is not required; rather, “an accused is in ‘custody' when, in the absence of an actual arrest, law enforcement officials act or speak in a manner that conveys the message that they would not permit the accused to leave.” United States v. Ali, 68 F.3d 1468, 1472 (2d Cir. 1995) (quoting Campaneria v. Reid, 891 F.2d 1014, 1021 n.1 (2d Cir. 1989)). And, although courts have long recognized a “border exception” to the Fourth Amendment's restrictions on searches and seizures, see Tabba v. ChertOjf, 509 F.3d 89, 97-98 (2d Cir. 2007), notably, “Supreme Court precedents establish no similar exception to Miranda's prophylactic requirement under the Fifth Amendment.” U.S. v. FNU LNU, 653 F.3d 144, 149 (2d Cir. 2011).
Importantly, “the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323 (1994). In other words, the test for determining a suspect's custodial status is “whether a reasonable person in the defendant's position would have understood himself to be subjected to the restraints comparable to those associated with a formal arrest.” Ali, 68 F.3d at 1472 (internal quotations omitted). As outlined by the Second Circuit in United States v. FNU LNU, 653 F.3d 144 (2d Cir. 2011), this inquiry considers a number of factors, in view of the totality of the circumstances:
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