Opinion
4:18-CR-00036-BCW
11-21-2022
UNITED STATES OF AMERICA, Plaintiff, v. SHAWN BURKHALTER, and JOSHUA NESBITT, Defendants.
ORDER AND RECOMMENDATION
Willie J. Epps, Jr., United States Magistrate Judge
Pending before the Court are the Motions to Suppress Evidence filed by Defendants Shawn Burkhalter and Joshua Nesbitt. (Docs. 1078, 1087). The Government filed its response in opposition (Doc. 1117), to which Mr. Burkhalter and Mr. Nesbitt have timely replied. (Docs. 1147, 1152). This case was referred to the Honorable Lajuana M. Counts, who set a suppression hearing before the undersigned regarding a black LG cellphone (“LG”). (Docs. 128, 1228). The Court held a hearing on this matter on November 16, 2022. (Doc. 1294). The issue is now ripe for consideration. For the reasons that follow, it is recommended that the motions be DENIED.
Shortly before the hearing, the Government filed a Motion in Limine to forbid certain testimony at the suppression hearing. (Doc. 1280). Mr. Burkhalter filed suggestions in opposition (Doc. 1281), which Mr. Nesbitt subsequently joined. (See Docs. 1292, 1293). At the suppression hearing, the Court addressed the Government's Motion in Limine on the record. (Doc. 1298). For the reasons stated on the record and more fully outlined below, the Court recommends that the Motion in Limine be granted in part and denies it in part.
Motion in Limine
The Government's Motion in Limine sought to forbid Mr. Burkhalter and Mr. Nesbitt from eliciting testimony during the suppression hearing regarding: (1) how the LG was searched; and (2) the contents of the search warrant, until there had been a substantial preliminary showing to justify a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). (Doc. 1280 at 2-5). Mr. Burkhalter and Mr. Nesbitt argued that testimony regarding the process of searching the LG was relevant because in the motion to suppress they argue that the search of the LG exceeded the scope of the warrant. (Doc. 1281 at 1-2). They further asserted that the Court already determined that the defendants made a substantial preliminary showing to justify a Franks hearing, so testimony regarding the contents of the search warrant was allowable. (Id. at 2).
Federal Rule of Evidence 104(a) mandates that “[t]he court must decide any preliminary question about whether . . . evidence is admissible . . . [but] the court is not bound by evidence rules.” Thus, “the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.” United States v. Henderson, 471 F.3d 935, 938 (8th Cir. 2006) (citations omitted). “The evidence on which the Court relies in ruling on a suppression motion[, however,] must still be sufficiently reliable and probative.” United States v. Golden, 418 F.Supp.3d 416, 422 (D. Minn. 2019) (citing United States v. Boyce, 797 F.2d 691, 693 (8th Cir. 1986)).
The Court ruled that Mr. Burkhalter and Mr. Nesbitt could elicit testimony about how the LG was searched. The Court determined that this testimony was relevant to Mr. Burkhalter and Mr. Nesbitt's argument that the search of the LG exceeded the scope of the warrant. See Golden, 418 F.Supp.3d at 422. The Government's argument that this testimony should be forbidden was unsupported by any Federal Rules of Evidence, and the cases cited in support of its argument described when the Court should hold an evidentiary hearing, not what testimony could or could not be elicited at a suppression hearing. See United States v. Tsarnaev, 53 F.Supp.3d 450, 46768 (D. Mass. 2014); United States v. Channon, No. 13-966-JCH, 2014 WL 12788057, at *13 (D. N.M. Sept. 22, 2014); United States v. Foster, 15 F.4th 874, 876 (8th Cir. 2021). Thus, the Court denied the Government's Motion in Limine as it pertained to testimony about how the LG was searched.
“[I]n order to merit a Franks hearing, [the defendants] must show both (1) that the affiant . . . ‘knowingly and intentionally' made false statements or made them in ‘reckless disregard for the truth' and (2) if the false information is excised (or the omitted information is included), the affidavit no longer establishes probable cause.” United States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013) (citing Franks, 438 U.S. at 155-56). “A mere allegation standing alone, without an offer of proof in the form of a sworn affidavit of a witness or some other reliable corroboration, is insufficient to make the difficult preliminary showing.” United States v. Mathison, 157 F.3d 541, 548 (8th Cir. 1998) (citing Franks, 438 U.S. at 171). Specifically, “[a]ffidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” United States v. Williams, 477 F.3d 554, 557 (8th Cir. 2007) (quoting Franks, 438 U.S. at 171). “The requirement of a substantial preliminary showing is not lightly met.” United States v. Short, 2 F.4th 1076, 1080 (8th Cir. 2021), cert. denied, 142 S.Ct. 626 (2021) (quoting Arnold, 725 F.3d at 898). “Because ‘[t]here is . . . a presumption of validity with respect to the affidavit supporting the search warrant[, t]o mandate [a Franks] hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to crossexamine.'” Williams, 477 F.3d at 558 (quoting Franks, 438 U.S. at 171). “Allegations of negligence or innocent mistake are insufficient.” Id. at 557 (quoting Franks, 438 U.S. at 171).
Mr. Burkhalter and Mr. Nesbitt alleged that the affiant, Detective Vernon Huth, made false statements and omitted relevant information in his affidavit accompanying the search warrant for the LG. (Doc. 1078 at 14-16; Doc. 1087 at 16-20). Specifically, Mr. Burkhalter alleged that the statement “Burkhalter sold small quantities of cocaine and marijuana” was false because a witness, Mr. Charles Leach, stated in an interview that Mr. Burkhalter only used cocaine and marijuana, never sold it. (Doc. 1087 at 17-18). Second, he and Mr. Nesbitt alleged that “Burkhalter and a codefendant, Joshua Nesbitt (‘Nesbitt') robbed . . . and killed Danny Lamont Dean” was false because Mr. Leach exculpated Mr. Burkhalter of Mr. Dean's murder. (Id. at 18; Doc. 1078 at 1415). Third, Mr. Burkhalter alleged that Mr. Anthony Johnson, another witness, never said that “Burkhalter and Nesbitt carried out the Dean murder” because Mr. Johnson actually said “[t]hey got into a clap out at Mama China's and somebody got smoked.” (Doc. 1087 at 18-19). Fourth, they both alleged that “at Burkhalter's direction, Nesbitt shot and killed Anthony Dwayne Johnson” was false because the record only contains evidence that Mr. Burkhalter communicated with an unknown male from jail, saying “go down there real quick . . . [and] take everything.” (Id. at 19; Doc. 1078 at 15-16). Fifth, Mr. Burkhalter alleges that Detective Huth omitted relevant information by not including in the affidavit that Mr. Burkhalter believed he had a parole warrant when he fled from the police, which was the true reason for his flight. (Doc. 1087 at 19-20). Mr. Nesbitt additionally asserts that Detective Huth omitted relevant information when he failed to include that Mr. Nesbitt had only resided in Missouri for a few weeks when Mr. Dean was murdered and was not involved with Mr. Burkhalter at any point prior to that time. (Doc. 1078 at 16).
The Court recommends a finding that Mr. Burkhalter and Mr. Nesbitt did not make a substantial preliminary showing to justify a Franks hearing. There is no indication that Detective Huth knew the statements described above to be false and intentionally submitted them in his affidavit. Arnold, 725 F.3d at 898. There are no sworn affidavits or other reliable corroborating evidence demonstrating that Detective Huth's statements were false, only an unsworn interview with Mr. Leach whose account was not based on first-hand knowledge. (See Doc. 1117 at 42-43). There is no explanation for why a sworn affidavit or other reliable evidence was not submitted with the request for a Franks hearing. Williams, 477 F.3d at 557. Mr. Burkhalter and Mr. Nesbitt's conclusory denials of the information in the affidavit are not enough to meet the difficult preliminary showing required. See id. Additionally, there is no indication that Detective Huth recklessly disregarded the truth when he failed to mention Mr. Leach's interview, Mr. Burkhalter's parole warrant, or how long Mr. Nesbitt lived in Missouri.
Even if the Court excised the alleged false statements and included the information omitted, the Court recommends a finding that the warrant could still establish probable cause. Specifically, there would still be information regarding Mr. Burkhalter's drug trafficking charges via superseding indictment, his flight from police, calls from jail, Detective Huth's training and experience lending him to believe drug traffickers use cellphones to arrange transactions, and marijuana residue found in a baggie in the car Mr. Burkhalter fled from. (See Doc. 1087-1). The Court recommends a finding that Judge Counts did not grant defendants' request for a Franks hearing by setting an evidentiary hearing in this case. She set the evidentiary hearing for this Court to hear argument and testimony regarding the motions to suppress evidence from the LG. (See Doc. 1208 at 12-13). For these reasons, the Court recommends denying the defendants' motion for a Franks hearing, thereby granting the Government's Motion in Limine in part.
Motions to Suppress Evidence
I. Findings of Fact
On the basis of the evidence presented at the evidentiary hearing, the Court submits the following proposed findings of fact:
1. Mr. Burkhalter was arrested following a high-speed chase in a Nissan Armada on October 2, 2015. (Tr. 39:15-16, 44:17-20). Law enforcement subsequently impounded the Armada. (Tr. 40:24-41:7).
2. After Mr. Burkhalter's arrest, law enforcement interviewed Mr. Burkhalter, where he denied owning a cellphone. (Tr. 44:17-20, 46:8-10).
3. On November 18, 2015, Kansas City Police Detective Eric DeValkenaere seized a black LG cellphone from the Armada. (Tr. 32:10-16).
4. Kansas City Police Sergeant Vernon Huth has 23 years of law enforcement experience, including with the Kansas City, Missouri Police Department, and as an FBI Task Force Officer. (Tr. 14:20-24, 15:4-12).
5. In December 2020, Detective Huth applied for a warrant to search the LG, which Judge Counts granted. (Tr. 15:20-16:5).
6. In his affidavit, Detective Huth summarized the allegations against Mr. Burkhalter by stating:
[T]he Superseding Indictment charges Burkhalter with years-long participation in a conspiracy to distribute cocaine and marijuana. In furtherance of the conspiracy, Burkhalter sold small quantities of cocaine and marijuana, usually acquiring the product through robberies of other small-time drug dealers .... On September 10, 2015, in Raytown, Missouri, Burkhalter and a codefendant, Joshua Nesbitt (“Nesbitt”), robbed a quantity of cocaine from Danny Lamont Dean, and in the process Nesbitt shot and killed Danny Lamont Dean with an AR-15 rifle .... [O]n October 4, 2015, at Burkhalter's direction, Nesbitt shot and killed Anthony Dwayne Johnson - the police tipster regarding the Dean murder - with the same AR-15 rifle used to kill Dean.(Gov't Exhibit No. 138).
7. Detective Huth stated that he believed Mr. Burkhalter “used the [LG] while driving the Nissan Armada on October 2, 2015[,] . . . [because] on two separate telephone calls from jail, [Mr.] Burkhalter told people about using a phone while he was driving the Nissan Armada before the chase.” (Tr. 31:21-24; Gov't Exhibit No. 138).
8. Detective Huth stated that he believed Mr. Burkhalter's “post-arrest denial of possession of a phone, when viewed in the context of the jail calls . . . suggest[ed] that [Mr.] Burkhalter did not want police to associate him with the [LG] . . . because he knew that the [LG] contain[ed] items that might incriminate him.” (Gov't Exhibit No. 138). He also stated that “[j]ail calls described in the Superseding Indictment show that [Mr.] Burkhalter was inclined to discuss criminal activity over the telephone, which [led him] to believe . . . that the [LG] may contain evidence of illicit communications.” (Gov't Exhibit No. 138).
9. Detective Huth stated that “[b]ased on [his] training and experience, [he knew] that individuals engaged in drug trafficking often use[d] mobile telephones to set up their transactions . . . [so the] cellular phones frequently have stored text messages, phone calls, and stored image and video files indicating prior illegal transactions.” (Gov't Exhibit No. 138).
10. Detective Huth requested “permission to conduct a complete forensic phone examination of the [LG] . . . includ[ing] a search for device identification data, contact lists, call logs, calendars, stored images and video files, internet history, SMS and MMS text messaging, and other data.” (Gov't Exhibit No. 138).
11. The warrant authorized Detective Huth to seize:
All records, data and information on the [LG] described in the application and affidavit relating to violations of Title 21, United States Code, Sections 841(a)(1) and 846, including:
a. Lists of customers and related identifying information;
b. Any information recording meetings, deliveries, the schedule and travel of the parties involved in drug trafficking;
c. All bank records, checks, credit card bills, account information, wire transfer and other financial records;
d. Records and documents related to residences utilized;
e. Contact information, incoming and outgoing call information, pictures, videos, stored voicemail and text messages;
f. Types, amounts, and prices of drugs trafficked as well as dates, places, and amounts of specific transactions;
g. Any information related to sources of drugs (including names, addresses, phone numbers, or any other identifying information);
h. Device ownership and user information, including evidence of user attribution showing who used or owned the [LG] at the time the things described in this warrant were created, edited, or deleted, such as logs, phonebooks, saved usernames and passwords, documents, and browsing history;
i. Records evidencing the Internet Protocol address, the use of said address and any records of other Internet Protocol addresses used;
j. Records of Internet activity, including firewall logs, caches, browser history and cookies, “bookmarked” or “favorite” web pages, search terms that the user entered into any Internet search engine, and records of user-typed web addresses;
k. Photographs, images, and videos of drug trafficking activity, drug trafficking associates, instrumentalities or proceeds of drug trafficking; including stored information related to the date, time, user and owner of the device, and location of the image generation; and
l. Any “geotagging” information such as the camera's date and time clock, make and model, serial number, and location of photographs and videos determined by the camera's Global Positioning System (GPS) receiver or geotagging tool. Including any identification information related to the use and ownership of the devices.
As used above, the terms “records” and “information” include all of the foregoing items of evidence in whatever form and by whatever means they may have been created or stored, including any form of computer or electronic storage (such as flash memory or other media that can store data) and any photographic form.(Gov't Exhibit No. 138).
12. Pursuant to the warrant, a computer forensics laboratory completed a full physical extraction of the LG. (Tr. 18:7-12).
II. Discussion
On February 21, 2018, a federal grand jury indicted Mr. Burkhalter and Mr. Nesbitt. (Doc. 1). A third superseding indictment was filed on September 6, 2022, charging Mr. Burkhalter and Mr. Nesbitt with participating in an illegal drug distribution conspiracy, possessing/distributing cocaine, discharging firearms in furtherance of a crime of violence or drug trafficking crime, possessing/distributing marijuana, murder resulting from the use of firearms in a crime of violence or drug trafficking crime, participating in a witness and evidence tampering conspiracy, murdering a potential witness, tampering with witnesses and evidence, robbery affecting interstate commerce, brandishing firearms in furtherance of a crime of violence, and being felons in possession of firearms. (Doc. 1226). Mr. Nesbitt and Mr. Burkhalter filed their Motions to Suppress Evidence in May 2022, challenging the constitutionality of the search of the LG. (Docs. 1078, 1087).
A. Legal standard
“The Fourth Amendment requires that search warrants be issued only ‘upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'” Dalia v. United States, 441 U.S. 238, 255 (1979) (quoting U.S. Const. amend. IV).
To establish probable cause, an affidavit in support of a search warrant must “[set] forth sufficient facts to establish that there is a fair probability that contraband or evidence of criminal activity will be found in the particular place to be searched.” United States v. Brackett, 846 F.3d 987, 992 (8th Cir. 2017) (citation omitted). “[A]n issuing judge [may] draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists to issue a warrant ....” United States v. Eggerson, 999 F.3d 1121, 1127 (8th Cir. 2021) (quoting Brackett, 846 F.3d at 992). To establish probable cause there must be a nexus “between the contraband [being sought] and the place to be searched.” United States v. Keele, 589 F.3d 940, 943 (8th Cir. 2009) (quoting United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000)). “Probable cause is a fluid concept that focuses on ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'” United States v. Colbert, 605 F.3d 573, 576 (8th Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)). Where, as here, “the issuing magistrate [judge] relies solely on a supporting affidavit in determining probable cause . . . ‘only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause.'” United States v. Saddler, 19 F.4th 1035, 1039 (8th Cir. 2021) (quoting United States v. Roberts, 975 F.3d 709, 713 (8th Cir. 2020)). The Court will not disturb the issuing judge's probable cause finding “unless there was no substantial basis for that finding.” Brackett, 846 F.3d at 992 (quoting United States v. Montgomery, 527 F.3d 682, 686 (8th Cir. 2008)).
To meet the particularity requirement mandated by the Fourth Amendment, the warrant must “particularly describ[e] the place to be searched, and the persons or things to be seized.” Eggerson, 999 F.3d at 1124 (quoting U.S. Const. amend. IV). The level of specificity will depend “on such factors as the purpose for which the warrant was issued, the nature of the items to which it is directed, and the total circumstances surrounding the case.” United States v. Fiorito, 640 F.3d 338, 346 (8th Cir. 2011) (quoting Milliman v. Minnesota, 774 F.2d 247, 250 (8th Cir. 1985)). In determining whether particularity is satisfied, the issuing court may also consider “a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.” United States v. Campbell, 6 F.4th 764, 770 (8th Cir. 2014) (citation omitted). “This particularity standard is one of ‘practical accuracy rather than' of hypertechnicality.” United States v. Sigillito, 759 F.3d 913, 923 (8th Cir. 2014) (quoting United States v. Peters, 92 F.3d 768, 769-70 (8th Cir. 1996)). Search warrants that “sufficiently limit [law enforcement's] search to the items specifically prohibited by statute” satisfy the particularity requirement. United States v. Gleich, 397 F.3d 608, 612 (8th Cir. 2005) (citation omitted). Additionally, the Eighth Circuit has “decline[d] to make a blanket finding that the absence of a search methodology or strategy renders a search warrant invalid per se.” United States v. Cartier, 543 F.3d 442, 447-48 (8th Cir. 2008).
A search or seizure pursuant to a warrant may not exceed the warrant's scope. See United States v. Stephen, 984 F.3d 625, 631-32 (8th Cir. 2021). To determine whether a search “exceeded the scope of a warrant, [the Court] look[s] to the fair meaning of the warrant's terms.” Id. (quoting United States v. Sturgis, 652 F.3d 842, 844 (8th Cir. 2011)). The Eighth Circuit has recognized that when executing a warrant for electronically stored information officers can “seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.” United States v. Beckmann, 786 F.3d 672, 680 n.6 (8th Cir. 2015) (quoting Fed. R. Crim. P. 41 Advisory Committee's Note on the 2009 Amendments). “The failure of the warrant to anticipate the precise form in which [the data] would appear is not fatal.” United States v. Sherman, 372 Fed.Appx. 668, 676 (8th Cir. 2010) (quoting United States v. Lowe, 50 F.3d 604, 607 (8th Cir. 1995)).
“If evidence was gathered in violation of the Fourth Amendment, it may be suppressed under the exclusionary rule.” Eggerson, 999 F.3d at 1124 (citing United States v. Leon, 468 U.S. 897, 906 (1984)). Yet, courts have developed several exceptions to the exclusionary rule. The good-faith exception applies even when a search warrant is defective or invalid but “an officer (1) obtains a search warrant (2) that appears properly issued on its face and (3) executes it within its scope and with objective good faith reliance on the warrant's validity.” Id. (citing Leon, 468 U.S. at 922). The good-faith exception “cannot be invoked[, however,] when the warrant is so facially deficient that no police officer could reasonably presume the warrant is valid.” Id. (citing Leon, 468 U.S. at 923).
An officer's reliance is only unreasonable if: (1) the affidavit supporting the warrant contains knowing or reckless false statements misleading the judge; (2) the issuing judge wholly abandons its judicial role in issuing the warrant; (3) the affidavit is so lacking in indicia of probable cause that reliance is entirely unreasonable; or (4) the warrant is so facially deficient that no reasonable officer could consider it valid.United States v. Augard, 954 F.3d 1090, 1093-94 (8th Cir. 2020), cert. denied, 141 S.Ct. 1397 (2021) (citing United States v. Proell, 485 F.3d 427, 431 (8th Cir. 2007)). In cases where an officer exceeds the scope of the warrant, the exclusionary rule does not apply if the officer made an “honest mistake” in interpreting and executing the warrant. United States v. Houck, 888 F.3d 957, 960-61 (8th Cir. 2018). An honest mistake occurs when “the officers reasonably believed that the warrant authorized the search, even if their interpretation was mistaken.” United States v. Sullentrop, 953 F.3d 1047, 1050 (8th Cir. 2020) (emphasis in original) (citing Houck, 888 F.3d at 961).
B. There was a substantial basis for Judge Counts' probable cause finding.
Mr. Burkhalter argues that the warrant to search the LG was not supported by probable cause because it was based on Detective Huth's conclusory assertions and failed to provide a sufficient nexus between the drug trafficking conspiracy and the LG. (Doc. 1087 at 9-10). The Government contends that considering the totality of the circumstances, the affidavit establishes probable cause for the search. (Doc. 1117 at 13-18). Alternatively, the Government argues that Detective Huth's reliance on the warrant was objectively reasonable under the good-faith exception. (Id. at 19-20).
The Court recommends finding that, even assuming Mr. Nesbitt and Mr. Burkhalter have standing to challenge the search, there was a substantial basis for Judge Counts' probable cause finding. First, Detective Huth stated that he believed Mr. Burkhalter “used the [LG] while driving the Nissan Armada on October 2, 2015.” Detective Huth also described the background of the case, which included his belief that Mr. Burkhalter had participated in a “years-long . . . conspiracy to distribute cocaine and marijuana.” Detective Huth then stated that: (1) Mr. Burkhalter was “inclined to discuss criminal activity over the telephone;” (2) Mr. Burkhalter denied possessing a phone when questioned after his arrest, which indicated that he knew law enforcement would find incriminating evidence on the LG; and (3) based on his training and experience, he knew “individuals engaged in drug trafficking often used mobile telephones to set up their transactions.” Based on a totality of these circumstances, Judge Counts could make a reasonable inference that there would be evidence of a drug trafficking conspiracy on the LG. See Eggerson, 999 F.3d at 1127. Further, given Detective Huth's statements, including his description of Mr. Burkhalter's past participation in drug trafficking and his knowledge about how drug traffickers use cellphones, there is a nexus between the LG and evidence of drug trafficking. See Keele, 589 F.3d at 943.
The Government argues that Mr. Burkhalter and Mr. Nesbitt do not have standing to challenge the search of the LG because it was in a stolen car, and they abandoned it. (Doc. 1117 at 8-13). The Eighth Circuit has held that when a search warrant is supported by probable cause the Court does not need to determine issues of standing. See United States v. Brooks, 715 F.3d 1069, 1075-76 (8th Cir. 2013). Since this Court ultimately recommends a finding that probable cause supported the warrant, it will not address the Government's standing arguments as there is a legal basis for the search regardless. See Brooks, 715 F.3d 1069, 1075-76.
Mr. Burkhalter argues that the affidavit improperly relied on a superseding indictment and a Government brief. (Doc. 1087 at 10-11). When Judge Counts evaluated whether the warrant was supported by probable cause, she was independently familiar with the superseding indictment and the Government's brief as the presiding judge. Given the issuing judge should rely on practical considerations when determining probable cause, she could use her familiarity with the case, including the referenced documents, to evaluate probable cause. See Colbert, 605 F.3d at 576. The affidavit also does not solely depend on these documents to establish probable cause. There are sufficient facts in the affidavit to support a probable cause finding without these documents.
The Court further recommends finding that the good-faith exception applies. Detective Huth obtained a search warrant that appeared properly issued on its face, and executed the search warrant within its scope with an objective good faith reliance on the warrant's validity. See Eggerson, 999 F.3d at 1124. There is no evidence that Judge Counts was misled by false statements, she wholly abandoned her judicial role, the affidavit was so lacking probable cause that any reliance on the warrant would be unreasonable, or that the warrant was facially deficient. See Augard, 954 F.3d at 1093-94. Thus, even if the Court found that probable cause was lacking, this Court recommends a finding that the good-faith exception applies, so the warrant was valid.
C. The warrant was sufficiently particular.
Mr. Nesbitt and Mr. Burkhalter argue that the warrant lacked sufficient particularity because it allowed law enforcement to search a broad category of electronically stored information, contained no date ranges, and imposed no search protocol. (Doc. 1078 at 9-11; Doc. 1087 at 1516). The Government counters that the search warrant is sufficiently particularized because it incorporates a list of items to be seized that are specifically limited to the drug trafficking conspiracy. (Doc. 1117 at 20-28). Alternatively, the Government argues that even if the warrant lacked sufficient particularity, Detective Huth's reliance on it was objectively reasonable under the good-faith exception. (Id. at 26-28).
The Court recommends a finding that the warrant is sufficiently particularized. The warrant lists the LG as the item to be searched and enumerates the categories of data that could be collected from it. See Campbell, 6 F.4th at 770. It authorizes a search for “[a]ll records, data and information on the [LG] described in the application and affidavit relating to violations of Title 21, United States Code, Sections 841(a)(1) and 846,” and then lists evidence that may fall under this limitation. This sufficiently limits the items to be seized to evidence related to the drug trafficking conspiracy. See Sigillito, 759 F.3d at 923; Fiorito, 640 F.3d at 346; Gleich, 397 F.3d at 612. The warrant also is not lacking in particularity because it lacks a search protocol. There is no general rule that a warrant must include a search protocol. See Cartier, 543 F.3d at 447-48. The particularity requirement must be assessed in terms of practicality. See Sigillito, 759 F.3d at 923. Detective Huth described how drug traffickers “frequently have stored text messages, phone calls, and stored image and video files indicating prior illegal transactions,” so it may be unclear where potential evidence is located. See id. Not all files on the LG are amenable to date-range limitations because this case involves a “years-long drug conspiracy.” Thus, the Court recommends a finding that the warrant was sufficiently particular.
The Court recommends finding that even if particularity were lacking, the good-faith exception applies for the same reasons described above. The warrant was not so facially deficient that Detective Huth could not have reasonably relied on it.
D. The search did not exceed the scope of the warrant.
Mr. Nesbitt and Mr. Burkhalter argue that Detective Huth exceeded the scope of the warrant by conducting a full physical extraction of the LG's data. (Doc. 1078 at 11 -14; Doc. 1152 at 19-20). The Government counters that the search did not exceed the scope of the warrant because data extraction was a reasonable way to search the LG. (Doc. 1117 at 28-38).
The Court recommends finding that the search did not exceed the scope of the warrant. The warrant's terms specifically included any data related to drug trafficking crimes and Detective Huth requested “permission to conduct a complete forensic phone examination of the [LG].” The warrant did not have to anticipate the precise location where relevant evidence would be stored. See Sherman, 372 Fed.Appx. at 676. As such, it is only practical that the search would involve copying the entire storage medium and reviewing it later. See Beckmann, 786 F.3d at 680 n.6. Even if the data extraction exceeded the scope of the warrant, it was, at most, an “honest mistake.” See Houck, 888 F.3d at 960. Given that Detective Huth's affidavit clearly contemplated a full physical extraction of the data, he reasonably believed the warrant authorized this search method. See Sullentrop, 953 F.3d at 1050. Thus, this Court recommends a finding that the search did not exceed the scope of the warrant, and even if it did, an exception to the exclusionary rule applies.
III. Conclusion
For the foregoing reasons, IT IS RECOMMENDED that the Government's Motion in Limine is GRANTED IN PART. It is further
ORDERED that the Government's Motion in Limine is DENIED IN PART. It is further
RECOMMENDED that the District Judge, after making an independent review of the record and applicable law, enter an order DENYING Defendants Shawn Burkhalter's and Joshua Nesbitt's Motions to Suppress Evidence as it pertains to the black LG cellphone.
Counsel are reminded that each party has fourteen (14) days from the date of receipt of a copy of this Report and Recommendation within which to file and serve objections. A failure to file and serve objections by this date shall bar an attack on appeal of the factual findings in the Report and Recommendation which are accepted or adopted by the District Judge, except on the grounds of plain error or manifest injustice.