United States District Court, D. Maryland
MEMORANDUM ORDER
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE .
Defendant
Nathaniel Michael Worthy has been charged with one count of
Conspiracy to Distribute and Possess with Intent to
Distribute Controlled Substance Analogues and Controlled
Substances, in violation of 21 U.S.C. S 846; two counts of
Possession of a Firearm in Furtherance of Drug Trafficking,
in violation of 18 U.S.C. S 924(c); and one count of
Possession of Controlled Substance Analogues with Intent to
Distribute, in violation of21 U.S.C. S 841(a)(1). On June
11, 2018, Worthy's co-defendant,,
Carjandario Danielle Yarborough, filed a series of pre-trial
motions, see ECF Nos. 34-39, all of which were
adopted by Worthy, see ECF No. 49. On November 13,
2018, Worthy filed another pre-trial motion. ECF No. 64. On
February 13, 2019, the Court conducted a hearing and resolved
the majority of the pre-trial motions. See ECF Nos.
73, 76. Pending before the Court is the Motion to Suppress
Tangible and Derivative Evidence (Cell Phones and Electronic
Devices), ECF No. 36. The Court has received Worthy's
post-hearing, supplemental filing on the Motion. ECF No. 78;
see ECF No. 76. For the reasons set forth below, the
Motion will be denied.
The
relevant factual background was detailed on the record during
the February 13, 2019 hearing. In the Motion, Worthy
challenges the search of nine cell phones seized during the
search of an apartment on Good Hope Road S.E., in Washington,
D.C. (the "Apartment"), in which he and Yarborough
resided. Those searches were conducted pursuant to a search
warrant issued by United States Magistrate Judge Timothy J.
Sullivan of this District.
To
assess whether probable cause exists to issue a search
warrant requested by law enforcement, a magistrate or other
judicial officer must "make a practical, commonsense
decision whether, given all the circumstances set forth in
the affidavit ... there is a fair probability that contraband
or evidence of a crime will be found in a particular
place." Illinois v. Gates, 462 U.S. 213, 238
(1983). A reviewing court owes the magistrate's probable
cause determination "great deference." Id.
at 236. The reviewing court is to uphold the issuance of the
search warrant if there was a "substantial basis"
for concluding that probable cause existed. !d. For the
issuing magistrate to have had a substantial basis for
finding probable cause, "[ s]ufficient information must
be presented" to allow the judge "to determine
probable cause," and the magistrate's action cannot
be a "mere ratification of the bare conclusions of
others." Id. at 239.
The
affidavit supporting the search warrant for the cell phones
includes the same facts provided in the search warrant
affidavit for the search of the Apartment,, discussed at the
hearing, that supported probable cause to search the
Apartment for evidence of drug dealing. In addition, the
affidavit includes the new facts that the cell phones were
found during that search, along with a substance consistent
with plants used for synthetic cannabinoids,, firearms,
ammunition, cash, and suspected narcotics packaging; that
Yarborough and Worthy, and no others, were in the Apartment
at the time of the search; and that Worthy later stated that
only he and Yarborough resided in the Apartment. The
affidavit also details a recorded phone call from Yarborough
to a phone number registered to Yarborough, but previously
identified as used by Worthy, in which Yarborough discussed a
murder believed to be related to the drug-dealing enterprise.
It also includes the affiant's knowledge, based on
training and experience, that cell phones are tools of the
drug trade and are used to arrange meetings, take orders, and
arrange deals, often using text messages, and that drug
dealers often have multiple phones, acquire new phones, and
change or discard phones and phone numbers to avoid
detection.
The
Court finds that the facts, taken together, provide a
"substantial basis" for the magistrate judge to
have found probable cause to search the seized cell phones.
Gates, 462 U.S. at 236. Both the original facts from
the first affidavit and the evidence found at the Apartment
provide probable cause to believe that there was drug dealing
by Worthy and Yarborough out of the Apartment... There was
some evidence in the warrant that Worthy and Yarborough used
phones to communicate about criminal activity relating to
drug dealing. Furthermore, courts can rely on an
affiant's training and experience in making a
probable-cause determination, and here, the special agent
submitting the affidavit stated that based on his experience,
there is a connection between drug dealing and cell phones.
See Ornelas v. United States, 517 U.S. 690, 700
(1996). Specifically, courts have acknowledged that a cell
phone is "a recognized tool of the trade in drug
dealing," United States v. Slater, 971 F.2d
626, 637 (10th Cir. 1992), and that an affiant's
knowledge, training, and experience of drug dealers' use
of cell phones in the trade can support a finding of probable
cause, see United States v. Gibbs, 547 Fed.Appx.
174, 179 (4th Cir. 2013) (holding that a search warrant
authorizing GPS monitoring of a cell phone was supported by
probable cause where the affidavit recounted the user's
"extensive drug dealing activities") United
States v. Harris, No 15-0170, 2066 WL 1441382, at *11-12
(E.D. Va. Apr. 11, 2016) (stating that courts have found
probable cause "to search a cell phone" where it
was "discovered in proximity to crime or
contraband" because it will "almost invariably
contain incriminating evidence"); cf. United States
v. Mathis, 767 F.3d 1264, 1276 (11th Cir. 2014) (relying
in part on an affiant's experience that "individuals
who sexually abuse children" sometimes store copies of
their communications with their victims on their cell phones
for years in validating a search warrant for the contents of
the cell phone), abrogated on other grounds by Lockhart
v. United States, 136 S.Ct. 958 (2016).
In
United States v. Fisher, No. 14-0413, 2055 WL
1862329, at *2 (D. Md. Apr. 22, 2015), the court held that
the affiant's attestation based on his training and
experience that drug dealers use cell phones to conduct their
drug dealing business, combined with the evidence of heroin
dealing in the affidavit, provided probable cause for the
issuance of a warrant for the search of a cell phone and
created a sufficient nexus between the defendants alleged
criminal conduct and the cell phone data seized. Id.
at *2. Similarly, here, the nine cell phones were discovered
in the search of the Apartment along with suspected synthetic
cannabinoids, firearms, ammunition, drug-packaging materials,
and U.S. currency, and the affidavit to search the cell
phones highlighted how drug dealers generally use cell phones
to facilitate their crimes. Notably, although the affidavit
did not provide evidence that the specific phones belonged to
Yarborough or Worthy or were used to facilitate drug dealing,
the fact that they were the only residents and occupants of
the Apartment,, and were both specifically tied to drug
dealing, provided a sufficient basis to infer that the cell
phones could contain evidence of criminal activity.
Worthy's
reliance on United States v. Griffith, 867 F.3d 1265
(D.C. Cir. 2017), is misplaced. In Griffith, the
court invalidated a search of a residence as part of a
homicide investigation in part because the warrant's
authorization to seize all cell phones found was not
supported by probable cause, since the affidavit
"conveyed no reason to think that [the defendant] owned
a cell phone" and there was no evidence that a cell
phone was used in relation to the homicide. Id. at
1271-72. In contrast, when the cell phone search warrant was
issued in this case, law enforcement already knew that the
cell phones had been found in the Apartment where Worthy and
Yarborough were the only occupants, along with plants linked
with synthetic cannabinoids, suspected narcotics packaging,
firearms, and ammunition, and there was some evidence, in
addition to the affiant's knowledge and experience, to
support a conclusion that Worthy and Yarborough communicated
about their drug-dealing enterprise over the phone.
Griffith is therefore inapplicable.
Worthy
argues that the search warrant affidavit was deficient
because it appears to be the same affidavit as used to
support the search of another location. Although the cell
phone affidavit recounted the facts asserted in the affidavit
for the search of the Apartment,, search warrant affidavits
may build upon prior affidavits and searches, and it is
permissible for a magistrate judge to consider the cumulative
effect of the combined evidence when deciding to issue a
search warrant. See United States v. Grossman, 400
F.3d 212, 218 (4th Cir. 2005). Contrary to Worthy's claim
that the warrant was overbroad, the warrant specifically
identified the cell phones by model and serial number in
Attachment A and described the type of evidence to be
searched for in those devices in Attachment B. See United
States v. Hurwitz, 459 F.3d 463, 470-73 (4th Cir. 2006).
The types of evidence to be seized were tailored specifically
to activities regarding the offenses for which Worthy was
under investigation and so are not so overbroad as to allow a
"genera,, exploratory rummaging" through the cell
phones. Cassady v. Goering, 567 F.3d 628, 643 (10th
Cir. 2009).
Finally,
Worthy's staleness argument is unpersuasive. As discussed
at the hearing, the information was sufficiently timely to
support the search of the Apartment,, because law enforcement
conducted a controlled buy at the residence itself just three
days before the warrant was obtained. See United States
v. McCall, 740 F.2d 1331, 1337 (4th Cir. 1984)
(upholding a search based on seven-month-old information that
the defendant had a revolver). Although there was a lapse of
about two months between when the phones were seized and when
the search warrant for the phones was obtained, they were in
police custody during that time, so the evidence present at
the time of the Apartment search would still be on the
phones. The Court will therefore uphold the magistrate
judge's probable cause finding.
Even if
there were no probable cause, the search would still be
upheld under the good faith exception of United States v.
Leon, 468 U.S. 897, 923 (1984). See United States v.
Legg, 18 F.3d 240, 243 (4th Cir. 1994). Under
Leon, even if probable cause has not been
established, a court can still uphold the search if the law
enforcement officers executing the warrant could objectively
rely in good faith on the magistrate's probable cause
determination. Leon, 468 U.S. at 920. The good faith
exception does not apply if the affiant knew there was a
false statement in the affidavit, or would have known of such
a false statement except for the affiant's reckless
disregard of the truth; if the magistrate wholly abandoned a
neutral judicial role; if the warrant was so facially
deficient, such as if it failed to identify the items to be
seized or place to be searched, that it could not reasonably
be deemed valid; or if the affidavit was "so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable." !d. at 923.
Here, the information in the affidavit was sufficient, at a
minimum, for an officer to rely in good faith upon the
magistrate judge's probable cause finding. None of the
exceptions that would bar use of the good faith exception
apply. There was no false statement in the affidavit, the
magistrate did not wholly abandon the neutral judicial role,
the warrant was not so facially deficient, such as failing to
identify the items to be seized or place to be searched, that
it could not reasonably be deemed valid, and the affidavit
was not "so lacking in indicia of probable cause as to
render official belief in its existence entirely
unreasonable." Id.
Accordingly,
it is hereby ORDERED that the Motion to Suppress Tangible and
Derivative Evidence (Cell Phones and ...