United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT HAMILTON'S MOTIONS TO
SUPPRESS [#236, #239] AND GRANTING IN PART AND DENYING IN
PART GOVERNMENT'S MOTION FOR ANONYMOUS JURY AND
Page Hood Chief Judge, United States District Court.
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
Hamilton's Motion to Suppress Evidence from Cellular
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.
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.
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.
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.
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.
Seizure of the Phones
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).
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,
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).
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.
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”).
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
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
“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.
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).
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
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.
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 ...