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United States v. Hamilton

United States District Court, E.D. Michigan, Southern Division

April 11, 2017

JEROME HAMILTON, et al., Defendants.


          Denise Page Hood Chief Judge, United States District Court.

         I. Introduction

         On October 31, 2016, a status conference pertaining to all Defendants was conducted. On the same day, the Court held hearings on the following motions:

A. Defendant Jerome Hamilton's Motion to Suppress Evidence from Cellular Telephones [#236];
B. Hamilton's Motion to Suppress Evidence from Social Media [#239]; and
C. Government's Motion for Anonymous Jury and Semi-Sequestration [#218].

         II. Hamilton's Motion to Suppress Evidence from Cellular Telephones

         Hamilton asserts that: (1) the warrantless seizure of two telephones (an Apple iPhone and Samsung S6 phone) at the time of his arrest were unlawful; and (2) the supporting affidavit for the warrant allowing the search of those telephones did not adequately demonstrate probable cause to believe that the evidence sought would be found on those telephones. This motion was fully briefed.

         The Government asserts, and Hamilton does not deny, that the Apple iPhone belonged to Hamilton's girlfriend, Akili Walker, not Hamilton. According to the Government, (a) Akili Walker told them that the phone belonged to her and consented to a search of it; and (b) a subsequent search of the phone confirmed that it was her phone. Hamilton does not contest any of these assertions. That being the case, Hamilton did not have a legitimate expectation of privacy in the Apple iPhone and has no standing to challenge the seizure of the Apple iPhone. See, e.g., United States v. Smith, 263 F.3d 571, 581-82 (6th Cir. 2001) (a person may only challenge the seizure of an item if he had an “actual, subjective expectation of privacy” in it and “that expectation was a legitimate, objectively reasonable expectation”). The Motion to Suppress is denied as to the Apple iPhone belonging to Akili Walker.

         The Samsung 6 phone belonged to Hamilton. The parties offer two different versions of the warrantless seizure of the Samsung 6 phone in conjunction with Hamilton's arrest, which indisputably was pursuant to an arrest warrant. According to the argument set forth by Hamilton in his motion and supporting brief, this is what happened:

Armed with a warrant for Mr. Hamilton's arrest, investigators arrived at his grandmother's house, outside of which a car he had been observed driving was parked, at approximately six o'clock in the morning of February 10, 2016. After they knocked, rang, and announced their presence, they were admitted to the house by his grandmother, Muriel Deborah Trent, a Michigan attorney.
Mr. Hamilton had been asleep in a bedroom in the lower level of the house, but was awakened by the agents' arrival, and opened the door to the upper level just as the agents arrived at the top of the stairs leading down to it. He was immediately arrested, handcuffed, and seated in a chair in the same room he was standing in when he opened the door - an area referred to as a “family room.” His female companion, who had also been asleep in the same bedroom as Mr. Hamilton, came into the room, and Mr. Hamilton, who was wearing only underwear, asked her to bring him some clothing. She returned to the bedroom, alone, and returned with a pair of pants and a shirt, which the agents assisted Mr. Hamilton in putting on.
Shortly thereafter, his grandmother came downstairs and sat on the couch in the family room. It was during this period of time that one or more of the agents went into the bedroom and emerged with the telephones.

Dkt. No. 236, PgID 801.

         In its brief, the Government's asserted that:

A team of ATF agents, Michigan State Police officers, and Detroit police knocked on the door at 6:05 a.m. Hamilton's grandmother, Deborah Trent, opened the door and allowed agents inside. Agents informed Trent of the warrant for Hamilton's arrest. Trent confirmed Hamilton was in the home and pointed to the basement where he was asleep. Michigan State Police officers roused Hamilton and his girlfriend, Akili Walker, from bed and arrested him. The officers also seized a Samsung S6 cellular phone on the bed and an Apple iPhone on a nightstand next to it.

Dkt. No. 260, PgID 1075-76.

         Subsequent to Hamilton's arrest and the seizure of his Samsung 6 phone, the Government, based on an affidavit of FBI Agent Brandon R. Lighter (“SA Lighter”), applied for a search warrant for the Samsung 6 phone (and the Apple iPhone). Magistrate Judge Mona Majzoub issued a search warrant covering both the phones.

         1. Seizure of the Phones

         Hamilton first challenges the seizure of the phones. The law is well-established that a warrantless search or seizure is “per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 357 (1967). One of those exceptions, which the Government relies upon in this case, is that an officer may perform a warrantless search and seizure of an individual incident to a lawful arrest. See, e.g., United States v. Robinson, 414 U.S. 218, 235 (1973); Riley v. California, 134 S.Ct. 2473, 2483 (2014) (no additional justification is required for a search incident to arrest and any seizure that results from that search); United States v. Campbell, 486 F.3d 949, 955 (6th Cir. 2007). The doctrine is rooted both in the need to disarm a suspect for the protection of officers but also to preserve evidence for use at trial. Arizona v. Gant, 556 U.S. 332, 339 (2009); Robinson, 414 U.S. at 234. It is “the government's burden to establish its entitlement to the search incident to arrest exception; if the government fails to make such a showing, the evidence must be suppressed.” United States v. Hrasky, 453 F.3d 1099, 1104 (8th Cir. 2006).

         The parties agreed that, based on their conflicting versions of where the arrest occured, an evidentiary hearing would be necessary to determine what happened at the time of his arrest. Such an evidentiary hearing was held on October 31, 2016.

         Hamilton asserts that because he was arrested under the circumstances he described (placed in handcuffs in a different room, away from the phones, to which he had no access), the officers' subsequent entry into-and search of-the room in which he was sleeping, and from which the phones were seized, was not incident to his arrest and was unconstitutional. Hamilton argues that the search incident to arrest doctrine includes temporal and physical limitations, namely that search incident to arrest may only include “the arrestee's person and the area ‘within his immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Gant, 556 U.S. at 339 (citation omitted). “[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.” Chimel v. California, 395 U.S. 752, 762-63 (1969).

         The Government argues that the seizure of the phone was proper and constitutional because it was incident to Hamilton's arrest in the room where they woke and arrested him, with the phones within the reach and immediate control of Hamilton. Relying on Chimel, 395 U.S. at 763 (police may search and seize items within the “immediate control” of the arrestee). The Court finds that there is no evidence to support that argument. Consistent with Hamilton's argument, none of the Government's witnesses at trial testified that Hamilton was in bed or in the room where the phone was found by officers. All of the Government witnesses testified that they first saw Hamilton in a room just outside the room where the phones were found.

         The Government next argues that, even if Hamilton were arrested outside of the bedroom he slept in, the officers had the right to search and seize items because, “even if that item is no longer accessible to the defendant at the time of the search, ” the arrestee “had the item within his immediate control near the time of his arrest, [and] the item remains subject to a search incident to an arrest.” Northop v. Trippett, 265 F.3d 372, 379 (6th Cir. 2001); Gant, 556 U.S. at 350 (limiting search area within control of arrestee at time of arrest to “evidence of the offense of arrest”).

         The Government also asserts that, even though Hamilton was arrested outside of the bedroom, officers were justified in seizing the phones as an investigatory detention pending the issuance of a search warrant as the “exigencies of the circumstances demand[ed]” the seizure pending issuance of a warrant. Citing United States v. Place, 462 U.S. 696, 701 (1983); Roaden v. Kentucky, 413 U.S. 496, 505 (1973) (“Where there are exigent circumstances in which police action literally must be ‘now or never' to preserve the evidence of the crime, it is reasonable to permit action withou[t] prior judicial evaluation.”).

         The exigent circumstances the Government relies upon are the need to preserve evidence stored in electronic items pending the issuance of a search warrant. See, e.g., Riley, 134 S.Ct. at 2493-94 (police can seize and secure cell phones “to prevent destruction of evidence while seeking a warrant); Illinois v. McArthur, 531 U.S. 326, 331-32 (2001) (warrantless seizure permitted when there is “a plausible claim of specially pressing or urgent law enforcement need, i.e., exigent circumstances”); United States v. Bradley, 488 F. App'x 99, 103-04 (6th Cir. 2012) (practice of seizing electronic items is permissible in light of the “inherently ephermal and easily destructible” nature of those items); United States v. Gholston, 993 F.Supp.2d 704, 710-12 (E.D. Mich. 2014) (collecting cases approving the seizure of cellular phones incident to lawful arrest).

         The “practice of seizing an item based on probable cause in order to secure a search warrant for it” is permissible to prevent loss or destruction of suspected contraband or evidence of a crime. Citing United States v. Respress, 9 F.3d 483, 486, 488 (6th Cir. 1993) (such an item cannot sit in evidence too long before law enforcement seeks a search warrant-the warrant must be pursued diligently). The Government cites the Supreme Court's recognition that cellular phones are vulnerable to evidence destruction even after a suspect is in custody because digital data can be “wiped” remotely; police may even take steps to protect that data by placing the phone in a Faraday bag or removing its battery. See Riley, 124 S.Ct. at 2486-87; Place, 462 U.S. at 701.

         Hamilton counters that, even if the search that resulted in the discovery of the phones was proper, there was no probable cause to believe that the phones - or the data stored on the phones - constituted evidence of a crime, such that the seizure of the phones that day was unlawful. Citing Soldal v. Cook County, Ill., 506 U.S. 56, 66 (1992). As the phones were seized from the home of his grandmother, an attorney, Hamilton contends that the Government cannot establish that “the exigencies of the situation demand[ed] it.” Citing Alman v. Reed, 703 F.3d 887, 904 (6th Cir. 2013).

         The Government argues that the Supreme Court has recognized that cell phones are “important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals.” Riley, 134 S.Ct. at 2493. The Government accurately states that both the indictment (which is referenced in the affidavit) and the affidavit include allegations that Hamilton participated in a violent criminal enterprise that involved communications, in part, through the use of cellular phones and other electronic devices. Dkt. No. 1, PgID 8; Dkt. No. 236, PgID 819-20 (¶ 10).

         The Court concludes that officers had the right to seize the phones because exigent circumstances existed at that time of Hamilton's seizure on the arrest warrant. Gholston, 993 F.Supp.2d at 715 (the seizure of an item-such as a cellular phone or laptop that contains electronic evidence-pending the issuance of a warrant “is justified in order to prevent the imminent loss or destruction of evidence.”). The Court denies Hamilton's Motion to Suppress Evidence from Cellular Phones on the grounds that the phones were illegally seized.

         2. Search Warrant

         Hamilton argues that the search warrant issued by Magistrate Judge Majzoub was constitutionally deficient due to the absence of probable cause to support it. “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” Illinois v. Gates, 462 U.S. 213, 239 (1983). According to the Ninth Circuit, “[c]onclusions of the affiant unsupported by underlying facts cannot be used to establish probable cause.” United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013) (citation omitted). “An officer seeking a warrant must produce adequate supporting ...

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