Motion to Suppress Physical Evidence and Memorandum of Law — United States v. Davis (Dkt. 44, E.D. Mo.)

Summary

A motion to suppress physical evidence, with a memorandum of law, filed February 16, 2022 by defendant Jonathan Davis through Assistant Federal Public Defender Tyler Morgan in United States of America v. Jonathan Davis, No. 4:21-CR-00167-HEA/SRW, in the U.S. District Court for the Eastern District of Missouri (Doc. 44). The motion asks the Court to suppress evidence seized in a search of his cellular phone, arguing that the search warrant lacked probable cause and that the officers could not reasonably have relied on it. It states that Davis is charged with robbery affecting commerce under 18 U.S.C. § 1951(a) (Count 1) and possession and brandishing of a firearm under 18 U.S.C. § 924(c) (Count 2), with an alleged offense date of January 23, 2021.

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Case: 4:21-cr-00167-HEA-SRW Doc. #: 44 Filed: 02/16/22 Page: 1 of 12 PageID #: 102




                     IN THE UNITED STATES DISTRICT COURT
                    FOR THE EASTERN DISTRICT OF MISSOURI
                              EASTERN DIVISION

 UNITED STATES OF AMERICA,                     )
                                               )
       Plaintiff,                              )
                                               )
 vs.                                           ) No. 4:21-CR-00167-HEA/SRW
                                               )
 JONATHAN DAVIS,                               )
                                               )
       Defendant.                              )
                                               )

  MOTION TO SUPPRESS PHYSICAL EVIDENCE AND MEMORANDUM OF
                            LAW

       COMES NOW defendant JONATHAN DAVIS, by and through counsel,

 Assistant Federal Public Defender Tyler Morgan, to move this Honorable Court to

 suppress evidence seized as a result of an unlawful search of his cellular phone. The

 search was undertaken based on a search warrant lacking in probable cause that did

 not comply with probable cause requirement for a valid search warrant. The complete

 lack of probable cause made any belief in the validity of the warrant by the officers

 who executed the warrant unreasonable.

       Jonathan Davis stands charged by indictment with the offenses of obstructing,

 delaying, or affecting commerce or the or the movement of any article in commerce or

 attempt to do so by robbery, in violation of 18 U.S.C. § 1951(a) (Count 1), and

 possession and brandishing of a firearm, in violation of 18 U.S.C. § 924(c) (Count 2).

 The alleged date of commission of the offenses is January 23, 2021.

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                            THE AFFIDAVIT FOR A SEARCH WARRANT

            On August 12, 2021, Detective Stanley Dooley applied for the search warrant

 at issue in this motion. He prepared an affidavit and swore to the contents of that

 affidavit before U.S. Magistrate Judge John Bodenhausen. 1

            The affidavit sought leave to search and perform a forensic examination upon

 “a red Apple iPhone cellular telephone with a black ‘Otterbox’ brand case.”

            As probable cause to search Mr. Davis’ phone, the search warrant stated that

 Mr. Davis had been identified as having robbed a Steak N’ Shake restaurant at 9550

 Natural Bridge Road, in Berkeley, Missouri, at approximately 12:30 a.m. on January

 23, 2021. The affidavit stated Mr. Davis’ cellular telephone number. The affidavit

 stated that Mr. Davis was arrested on March 2, 2021, and that his cellular phone was

 seized from him at that time. In an interview following his arrest, Mr. Davis denied

 being present at the time of the robbery.

            The affidavit sought leave to forensically examine and search the seized

 cellular telephone. It justified this request with non-specific, generic, boilerplate

 language stating, “In summary, electronic devices and the services they provide are

 such a pervasive and insistent part of daily life that carrying one is indispensable to

 participation in modern society. Thus, there is reason to believe that the individuals

 and their associates described in this affidavit used mobile electronic devices in



 1
     An earlier, nearly identical, search warrant had been sought and granted before U.S. Magistrate David Noce.
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 conjunction with the events described herein. The devices themselves operate as

 instrumentalities of the crimes.” The affidavit stated the uses that people make of

 phones generally, the ability of the phone’s location data to indicate a user’s physical

 location at the time of alleged incidents, that phones can be used to communicate

 with co-conspirators and accomplices, to take photos, to brag to confederates, to post

 videos, and to obtain information from internet services. There was, however, no

 indication in the affidavit of the involvement of co-conspirators or accomplices, or that

 the person doing the robbery was in possession of a phone at the time of the alleged

 robbery. There was no specific evidence cited of actual use of a cellular phone in the

 commission of the offense.

                               THE SEARCH WARRANT

       On August 12, 2021, based on the affidavit of Special Agent Dooley, U.S.

 Magistrate Judge John Bodenhausen granted a search warrant. The search warrant

 authorized a search of the cell phone seized from Mr. Davis.

                    REASONABLE EXPECTATION OF PRIVACY

       Riley v. California, 134 S.Ct. 2473 (2014), stated that a warrant is required

 to search digital information on a cellular phone seized from an individual who has

 been arrested. The case recognized that substantial privacy interests are involved

 when digital information is involved. “Modern cell phones, as a category, implicate

 privacy concerns far beyond those implicated by the search of a cigarette pack, a

 wallet, or a purse.” Id., at 2489.
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       The Fourth Amendment provides that “the right of the people to be secure in

 their persons, houses, papers, and effects, against unreasonable searches and

 seizures, shall not be violated, and no warrants shall issue, but upon probable cause,

 supported by oath or affirmation, and particularly describing the place to be searched,

 and the persons or things to be seized.”

       The Court in Riley noted some distinct characteristics of cell phones and the

 contents people keep on them.

       Cell phones differ in both a quantitative and a qualitative sense from other
       objects that might be kept on an arrestee's person. The term “cell phone” is
       itself misleading shorthand; many of these devices are in fact minicomputers
       that also happen to have the capacity to be used as a telephone. They could
       just as easily be called cameras, video players, rolodexes, calendars, tape
       recorders, libraries, diaries, albums, televisions, maps, or newspapers.

 Id., at 2489.

       Indeed, a cell phone search would typically expose to the government
       far more than the most exhaustive search of a house: A phone not only contains
       in digital form many sensitive records previously found in the home; it also
       contains a broad array of private information never found in a home in any
       form—unless the phone is.

 Id., at 2491.

       Modern cell phones are not just another technological convenience. With all
       they contain and all they may reveal, they hold for many Americans “the
       privacies of life,” Boyd, supra, at 630, 6 S.Ct. 524. The fact that technology now
       allows an individual to carry such information in his hand does not make the
       information any less worthy of the protection for which the Founders fought.
       Our answer to the question of what police must do before searching a cell phone
       seized incident to an arrest is accordingly simple—get a warrant.

 Id., at 2494-2495.

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       There is no dispute that in this case, the investigating officers did seek and

 obtain a warrant. The warrant, however, was not based upon probable cause.

            THE WARRANT WAS NOT BASED ON PROBABLE CAUSE

       Unlike in Riley, the search in this case was pursuant to a search warrant.

 However, “[t]o be valid under the Fourth Amendment, a search warrant must be

 supported by a showing of probable cause.” United States v. Wallace, 550 F.3d 729

 (8th Cir. 2008). “Probable cause exists, if under the totality of the circumstances, a

 showing of facts can be made sufficient to create a fair probability that evidence of a

 crime will be found in the place to be searched.” United States v. Underwood, 364

 F.3d 956, 963 (8th Cir. 2004). In United States v. James, 3 F.4th 1102 (8th Cir. 2021),

 the court wrote that probable cause requires “a showing of facts” that “create a fair

 probability that evidence of a crime will be found in the place to be searched.”

       “When the magistrate relied solely upon the supporting affidavit to issue the

 warrant, ‘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. Etheridge, 165 F.3d 655, 656 (8th Cir, 1999).

       The affidavit did not state probable cause to justify the search of the cell phone

 for at least the following reasons:

       Nothing in the affidavit says that there is any indication that a cell phone was

 used in the commission of the alleged offense.

       Nothing about the nature of the offense suggests that a cell phone was a
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 necessary instrumentality of the offense.

       Nothing in the affidavit supported the general assertion that this cell phone

 had operated as an instrumentality of the alleged crime.

       Nothing in the affidavit indicated that the cell phone was actually present at

 the scene of the alleged offense. No witnesses told police that the robber had or used

 a cell phone.

       The portion of the affidavit that actually dealt with supposed reasons to justify

 the search of the phone was boilerplate and could be used to attempt to justify the

 search of the cell phone of any arrestee. It basically said that people use cell phones

 to communicate with associates and co-conspirators. There was, however, no mention

 of actual evidence of any accomplices or co-conspirators. No witness said that there

 was another person involved.       The affidavit speculated that there might be

 photographic evidence on a cell phone. But, again, there was nothing specific to

 suggest that this was the case in this particular case. The affidavit was in support of

 a fishing expedition.

       See the case of United States v. Ramirez, 180 F.Supp.3d 491 (W.D. Kentucky

 Apr. 12, 2016).   “The only basis for a search of the telephone is a general and

 conclusory statement that the affiant, who has only been in law enforcement for three

 (3) years, has ‘training and field experience that individuals may keep text messages

 or other electronic information stored in their cell phones which may relate them to

 the crime and/or co-defendants/victim.’” The court in Ramirez held that such a
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 boilerplate statement did not rise to the level of probable cause, writing, “the affidavit

 says only that unspecified “individuals may keep text messages or other electronic

 information stored in their cell phones which may relate them to the crime and/or co-

 defendants/victim.” Aff. 2. Without any additional detail tying Ramirez's arrest to

 his cell phone,   this boilerplate statement    is   insufficient   to   establish    the

 particularized facts demonstrating fair probability that evidence of a crime will be

 located on the phone.”

       The Supreme Court of Massachusetts in Commonwealth v. White, 59 N.E.3d

 369 (Mass. 2016), in held that an officer's opinion--that based on training and

 experience, evidence of a crime can often be found on a cell phone--was insufficient to

 establish probable cause, even when the defendant was a suspect in a multi-

 perpetrator crime and officers knew he owned a cell phone. The court pointed to the

 fact that officers had “no information that the cellular telephone had been used to

 plan, commit, or cover up the crime, or that it contained any evidence of the crime.”

 The court reasoned that “it would be a rare case where probable cause to charge

 someone with a crime would not open the person's cellular telephone to seizure and

 subsequent search” if these facts alone were sufficient to establish probable cause--a

 result which is contrary to the significant privacy interests that individuals have in

 cell phones. Id., at 377. In White,


       prior to seizing the defendant's cellular telephone, police had received
       information that the robbery and homicide under investigation had been
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       committed by several people, that the defendant likely was one of those people,
       and that he owned a cellular telephone. They also knew from experience that
       coventurers often use cellular telephones to communicate with each other, and
       that these devices may contain evidence of such communications. According to
       their own statements, however, the detectives here did not have any
       “information that [a] cell phone was used in the crime under investigation,”
       nor did they claim that there existed a particular piece of evidence likely to be
       found on such a device. In essence, then, their decision to seize the defendant's
       cellular telephone was made because (a) they had reason to believe that the
       defendant had participated with others in the commission of a robbery-
       homicide and (b) their training and experience in cases involving multiple
       defendants suggested that the device in question was likely to contain evidence
       relevant to those offenses.
       This, without more, does not satisfy the nexus requirement. “Information
       establishing that a person [may be] guilty of a crime does not necessarily
       constitute probable cause to search” or seize the person's cellular telephone,
       even where the police believe, based on their training and experience in similar
       cases, that the device is likely to contain relevant evidence (citation
       omitted). Commonwealth v. Pina, 453 Mass. 438, 441, 902 N.E.2d 917 (2009).
       Rather, even where there is probable cause to suspect the defendant of a crime,
       police may not seize or search his or her cellular telephone to look for evidence
       unless they have information establishing the existence of particularized
       evidence likely to be found there.

 White, at 377.

              See also, United States v. Tirado, 2018 WL 3245204 (E.D. Wis. Jan.

 26, 2018) (holding that a warrant to search cell phones found on a suspect a week

 after a retail theft incident was not supported by probable cause). The court in the

 Tirado case stated: The affidavit establishes that photos from the surveillance video

 were used to identify Dumas. It also establishes that Dumas was arrested and that

 when he was arrested he was in possession of the two cell phones. But the bare-boned

 affidavit woefully fails to connect the two cell phones with the commission of the retail

 theft and disorderly conduct. Recall that Dumas was arrested one week after the
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 theft. Nothing in the affidavit suggests that he was in possession of the cell phones

 during the commission of the retail theft and disorderly conduct, or that he used the

 cell phones during the commission of the offenses. “There must be some nexus

 between the items to be searched and the commission of the crime. A mere boilerplate

 recitation about the use and features of cell phones is not enough. Otherwise being

 arrested for anything, including minor violations of the law, would always provide

 probable cause to search one's cell phone regardless of any connection between the

 violation arrested for and the cell phone. The law requires more.” Tirado, at *16.

 Also from Tirado,

       Equally, the generic boilerplate statement that “cellular phones have the
       potential to show the location of where the user(s) (suspect) of the device were
       previously located” is insufficient where nothing else connects the cell phones
       to the offenses. Neither statement read alone or together connects the cell
       phones to the specific offenses alleged in the affidavit. With the ubiquity of cell
       phones, both of these statements can be cut and pasted into any affidavit. A
       reasonably well-trained officer would have known that specific facts connecting
       the items to be searched and the alleged offense are required for probable cause
       and in the absence of specific facts, he should not have applied for the warrant.
       Stated differently, the nexus between the cell phones and the alleged offenses
       are nonexistent such that a reasonably well trained officer would have known
       that the warrant was not supported by probable cause despite the judge's
       authorization.
       For this reason, I conclude that this affidavit is so plainly deficient as to mock
       the probable cause standard and, more fundamentally, the Fourth
       Amendment. I recommend that the court find that the Leon good faith
       exception does not apply in this case and the evidence seized from the two cell
       phones be suppressed.

 Tirado, at *17.

       An observation from the case of United States v. Martin, 833 F.2d 752 (8th

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  Cir. 1987), is appropriate here.     There, “The district court held that [the law

  enforcement officer’s] affidavit may support an educated guess, but not probable

  cause.” Id., at 755.

             THE GOOD FAITH EXCEPTION DOES NOT APPLY HERE

        The Supreme Court has identified four circumstances in which an officer's

  reliance on a search warrant would be objectively unreasonable: (1) when the

  affidavit or testimony in support of the warrant included a false statement made

  knowingly and intentionally or with reckless disregard for its truth, thus misleading

  the issuing judge; (2) when the judge “wholly abandoned his judicial role” in issuing

  the warrant; (3) when the affidavit in support of the warrant was “so lacking in indicia

  of probable cause as to render official belief in its existence entirely unreasonable”;

  and (4) when the warrant is “so facially deficient” that the executing officer could not

  reasonably presume the warrant to be valid. United States v. Grant, 490 F.3d 627,

  632 (8th Cir. 2007). In this case, at least the third instance applies: the affidavit in

  support of the warrant was so lacking in indicia of probable cause as to render official

  belief in its existence entirely unreasonable.

        The affidavit in this case lacked the information necessary to establish

  probable cause. It was completely lacking in indicia of probable cause. It was based

  upon speculation and boilerplate that could apply in almost all cases where an

  arrestee for a crime has a phone. It was unreasonable for a trained and experienced


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  officer to believe that it did establish probable cause and the “good faith” exception

  does not save this search of this phone.

                                     CONCLUSION

        Any evidence seized from the cellular phone of Mr. Davis was seized because

  of an invalid warrant not based upon probable cause. The illegal search and seizure

  violated the defendant’s rights under the Fourth Amendment to the United States

  Constitution.

        BY REASON OF THE FOREGOING, Defendant Jonathan Davis moves this

  Honorable Court to suppress evidence seized as a result of an unlawful search of his

  cellular telephone.

                                         Respectfully submitted,

                                         /s/ Tyler Keith Morgan
                                         TYLER KEITH MORGAN
                                         Assistant Federal Public Defender
                                         1010 Market Street, Suite 200
                                         St. Louis, Missouri 63101
                                         Telephone: (314) 241-1255
                                         Fax: (314) 421-3177
                                         E-mail: Tyler_Morgan@fd.org
                                         ATTORNEY FOR DEFENDANT




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                             CERTIFICATE OF SERVICE

  I hereby certify that on February 16, 2022, the foregoing was filed electronically with
  the Clerk of the Court to be served by operation of the Court’s electronic filing system
  upon Jennifer Szczucinski, Assistant United States Attorney.


                                          /s/Tyler Keith Morgan
                                          TYLER KEITH MORGAN
                                          Assistant Federal Public Defender




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