Opinion
CRIMINAL NO.: 4:20-CR-318-ALM-KPJ-1
2022-09-21
UNITED STATES of America v. Keith Todd ASHLEY (1)
Heather Harris Rattan, Assistant U.S. Attorney, Jay Robert Combs, U.S. Attorney's Office, Plano, TX, for United States of America. James P. Whalen, Ryne Thomas Sandel, Whalen Law Office, Frisco, TX, for Keith Todd Ashley.
Heather Harris Rattan, Assistant U.S. Attorney, Jay Robert Combs, U.S. Attorney's Office, Plano, TX, for United States of America. James P. Whalen, Ryne Thomas Sandel, Whalen Law Office, Frisco, TX, for Keith Todd Ashley. MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On September 19, 2022, the Magistrate Judge entered proposed findings of fact and recommendations (the "Report") that Defendant Keith Todd Ashley's ("Defendant") Motion to Suppress (the "Motion") (Dkt. #102) be denied. See Dkt. #146. Defendant filed Objections (Dkt. #155) to the Report.
The Court has conducted a de novo review of the Objections and is of the opinion that the findings and conclusions of the Magistrate Judge are correct, and the Objections are without merit as to the ultimate findings of the Magistrate Judge. Accordingly, Defendant's Objections (Dkt. #155) are OVERRULED and the Magistrate Judge's Report is ADOPTED as the findings and conclusions of the Court.
IT IS THEREFORE ORDERED that the Motion (Dkt. #102) is DENIED. ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Keith Todd Ashley's ("Defendant") Motion to Suppress (the "Motion") (Dkt. 102), wherein Defendant seeks to suppress evidence seized by law enforcement following a voluntary interview. The Government filed a response in opposition. See Dkt. 119. On September 9, 2022, the parties appeared for a hearing on the Motion (the "Hearing"). See Dkt. 121. On September 14, 2022, the Government filed a supplemental response (Dkt. 125) and Defendant filed an objection and reply to the Government's supplemental response (Dkt. 126). The Motion was referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636. See Dkt. 107. Upon consideration, the Court recommends the Motion (Dkt. 102) be DENIED.
On September 9, 2022, the Government filed an Amended Response in Opposition to include search warrants not included in the original response (Dkt. 115) as to Defendant's truck, Defendant's cell phone in the truck, and Defendant's cell phone on his person that were obtained following the Interview. See Dkt. 119.
At the Hearing, Defendant requested the Court review the recording of the Interview; the Government subsequently provided the Court with the recording for an in camera review.
Defendant objects to the Government's supplemental response and affidavit of Detective Brandon Bonner ("Detective Bonner"). Dkt. 125. at 1. The Government did not request leave to supplement its response. However, due to the limited time frame before Defendant's specially set trial on September 26, 2022 (Dkt. 90), the Court accepts both parties' briefing, but does not consider Detective Bonner's affidavit. The Court also does not consider the Government's one-line inevitable discovery doctrine argument raised for the first time in its supplemental response. See Dkt. 125 at 10.
I. BACKGROUND
Defendant is awaiting trial in state and federal court for allegedly operating a Ponzi scheme and murdering one of his investors (the "Victim"). See Dkt. 127; State v. Keith T. Ashley, No. F2100109 (195th Dist. Ct., Dallas Cnty., Tex. filed Apr. 21, 2021). In federal court, Defendant is charged with fourteen counts of wire fraud, two counts of mail fraud, one count of carrying or possessing a firearm in furtherance of a crime of violence, one count of carrying or possessing a firearm in furtherance of a crime of violence causing death/murder by robbery, one count of attempted bank theft and bank theft, and one count of attempted wire fraud and wire fraud. See Dkt. 127. In state court, Defendant is charged with capital murder. See State v. Keith T. Ashley, No. F2100109 (195th Dist. Ct., Dallas Cnty., Tex. filed Apr. 21, 2021).
The Government alleges Defendant murdered one of his investors (the "Victim") by injecting the Victim with sedative etomidate and then shooting the Victim. See Dkt. 119 at 3. The Government further asserts that after killing the Victim, Defendant manipulated the crime scene to appear as a suicide by placing the gun in the Victim's hand and drafting and printing a suicide note directing the Victim's wife to call Defendant. See id. at 3-4. In fact, the medical examiner ultimately ruled the Victim's death to be a suicide. See id. at 5, 7-8.
Two days following the Victim's death, February 21, 2020, the Government alleges Defendant attempted to log into the Victim's bank account but failed due to the two-step authentication process. See id. at 4. The Government asserts Defendant then went to the Victim's house, obtained the Victim's unlocked cell phone, transferred $20,000 from the Victim's bank account to himself, and deleted text messages between the Victim and himself. See id. The Victim's wife subsequently informed law enforcement that she had confronted Defendant about deleting the text messages and he allegedly responded that he had done so "accidentally." See id. The Government also contends the Victim's doorbell video camera showed that Defendant was the only person to enter the Victim's home prior to the discovery of his body. See id. at 3. The video camera also recorded Defendant arriving and leaving from the Victim's home in his truck the same day of the Victim's death. See id. at 10.
On September 3, 2020, detectives of the Carrollton Police Department ("Detectives") conducted a voluntary interview (the "Interview") with Defendant. See Dkt. 102 at 1; Dkt. 119 at 1. The Government alleges Defendant lied to Detectives in the Interview. For example, Detectives asked Defendant about the noise that set off the garage camera in the Victim's house while Defendant was present. See Dkt. 119 at 4. Defendant responded that he thought it was a falling object in the Victim's house, rather than a gunshot. See id.; see also September 3, 2020 Interview Recording ("Interview Recording") at 50:00-1:00:10. At the conclusion of the Interview, Detectives informed Defendant that he was a suspect in the murder of the Victim. See id. at 5. Subsequently, Detectives seized the keys to Defendant's truck that he had driven to the police station and the cell phone on Defendant's person. See id. at 1. Detectives obtained a warrant within hours of the seizure to search Defendant's truck, including inter alia its electronic storage media and computer systems, any biological evidence, clothing, and any cell phones or electronic devices within the vehicle. See id. at 5; Dkt. 119-1 at 1-2. The following day, September 4, 2020, Detectives obtained a warrant to search Defendant's cell phone found on his person. See Dkt. 119 at 5-6. On the same day, Detectives obtained a search warrant for a phone that had been located in the search of Defendant's truck. See id. at 6. During the interim between the seizure of the phones and the issuance of the warrants, Defendant's truck and cell phones remained in the custody of the Carrollton Police Department. See id. Defendant was indicted on November 13, 2020, and arrested the same day. See Dkt. 1.
However, due to a clerical error this warrant was not executed, and a second warrant was issued on September 25, 2020, to search the cell phone. See Dkt. 119 at 6.
II. LEGAL STANDARD
The Fourth Amendment provides:
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.U.S. CONST. amend. IV. Hence, under the Fourth Amendment: (1) all searches and seizures must be "reasonable"; and (2) a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set forth with particularity. Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (citing Payton v. New York, 445 U.S. 573, 584, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Generally, a warrant must be obtained prior to conducting a search and seizing evidence; warrantless searches and seizures are presumptively unreasonable. Id. (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). However, because the "ultimate touchstone of the Fourth Amendment is 'reasonableness' . . . the warrant requirement is subject to certain reasonable exceptions." Id. (internal citations omitted).
Evidence obtained through an unreasonable search may be suppressed under the exclusionary rule. See Herring v. United States, 555 U.S. 135, 139, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) ("Nonetheless, our decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial."). However, "suppression is not an automatic consequence of a Fourth Amendment violation." Id. at 137, 129 S.Ct. 695. "Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct." Id. The exclusionary rule only applies if suppression would appreciably deter future violations of the Fourth Amendment. See id. at 141, 129 S.Ct. 695 ("[T]he exclusionary rule is not an individual right and applies only where it results in appreciable deterrence" and "the benefits of deterrence must outweigh the costs." (cleaned up)).
To suppress evidence on Fourth Amendment grounds, "[t]he party seeking suppression 'has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights.' " United States v. Wallace, 885 F.3d 806, 809 (5th Cir. 2018) (quoting United States v. Smith, 978 F.2d 171, 176 (5th Cir. 1992)). This burden shifts if the challenged police action occurred without a warrant because "warrantless searches and seizures are per se unreasonable unless one of the recognized exceptions applies." United States v. Thomas, 997 F.3d 603, 609 (5th Cir. 2021). Thus, if the movant makes a preliminary showing that a search or seizure occurred without a warrant, the burden shifts to the prosecution to show "that [the] warrantless search or seizure fits within one of the [recognized] exceptions" to the warrant requirement. Id. (internal citation omitted); see also United States v. Jaquez, 421 F.3d 338, 341 (5th Cir. 2005) ("The government bears the burden of showing the reasonableness of a warrantless search or seizure.") (citing United States v. Chavis, 48 F.3d 871, 872 (5th Cir. 1995)). Courts must consider whether there are exigent circumstances on a "case-by-case assessment." Missouri v. McNeely, 569 U.S. 141, 152, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
III. ANALYSIS
Defendant moves to suppress evidence resulting from the warrantless seizure of Defendant's truck, the cell phone in his truck, and the cell phone on his person. Defendant argues the warrantless seizure of Defendant's truck and two cell phones was unlawful, as there were no exigencies or exceptions to the warrant requirement to justify the seizure. See Dkt. 102 at 2-3. Defendant's Motion does not challenge the validity of the search warrants obtained following the seizure of these items. See generally id. The Government opposes the Motion. According to the Government, the warrantless seizure of Defendant's truck and two cell phones falls within the exigent circumstances exception. See Dkt. 119 at 6-9; Dkt. 125 at 8-10. Additionally, the Government argues the seizure of Defendant's truck and the cell phone in his truck were proper pursuant to the automobile exception. See Dkt. 119 at 9-10. As set forth herein, the Court finds the warrantless seizure of Defendant's truck and the cell phone on Defendant's person were lawful because exigent circumstances justified the seizure.
The Government asserts that "no evidence was obtained from the cellphone found in the truck" and "[a]s such there is no evidence for this Court to consider suppressing [regarding the cell phone found in the truck]." Dkt. 119 at 6 n.4. Therefore, the Motion is denied as moot as to Defendant's cell phone located in Defendant's truck.
Because the Court finds that exigent circumstances justify the warrantless seizures, it does not address the Government's additional argument regarding the automobile exception.
A. Exigent Circumstances Exception
The Government argues the warrantless seizure of Defendant's cell phone on his person and truck was lawful because there were exigent circumstances. See Dkt. 119 at 6. Specifically, after Detectives posed revealing questions to Defendant regarding the suspected murder of the Victim and Detectives notified Defendant that he was a suspect in the murder of the Victim, there was a possibility that Defendant would destroy evidence believed to be on Defendant's cell phone and in his truck. See id. at 7-8. This belief was supported by the fact that the Government had probable cause to believe these items contained evidence, see id. at 7-9, and, furthermore, because of the Government's belief that Defendant had previously destroyed evidence of communications between himself and the Victim on the Victim's phone and manipulated the crime scene of the Victim's alleged murder. See id. at 3-4.
Defendant offers two alternative arguments as to why the exigent circumstances exception does not apply here. In the Motion, Defendant argues that because law enforcement had previously obtained search warrants to search Defendant's residence and business, as well as a tracking device for Defendant's truck, there must not have been probable cause to search Defendant's cell phone and truck. See Dkt. 102 at 3. Defendant argued at the Hearing and in his reply to the Government's supplemental response that, if probable cause existed for the seized items prior to the Interview, then the Government should have obtained search warrants prior to the seizure. See Dkt. 126 at 3.
Police may seize personal property pending a warrant if there is (1) probable cause to believe the property contains evidence of a crime; and (2) exigent circumstances justify the warrantless seizure. See United States v. Beard, No. 3:20-cr-0567, 2022 WL 1321549, at *10 (N.D. Tex. May 3, 2022) (citing United States v. Diaz, 435 F. App'x 329, 332 (5th Cir. 2011); United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). In Kentucky v. King, the Supreme Court explained the exigent circumstances exception requires that the conduct of the police preceding the exigency is reasonable and does "not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment." 563 U.S. at 462, 131 S.Ct. 1849. The King Court emphasized the "Fourth Amendment requires only the steps preceding the seizure be lawful" and that courts must look to "objective factors, rather than subjective intent" to determine exigency. Id. at 463-64, 131 S.Ct. 1849. Thus, "[a] valid exigency exists when an officer believes that evidence is being destroyed—although an officer may not rely on the need to prevent destruction of evidence when that exigency was created or manufactured by the conduct of the police." United States v. Daniels, 930 F.3d 393, 400 (5th Cir. 2019) (internal citations and quotation marks omitted).
The issue of exigent circumstances "is most naturally considered by look[ing] to the totality of circumstances confronting the officer . . . ." Lange v. California, — U.S. —, 141 S.Ct. 2011, 2018, 210 L.Ed.2d 486 (2021) (citation and internal quotations omitted). Courts in the Fifth Circuit evaluate whether there was an exigency justifying the search under the following non-exhaustive five-factor test:
(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the reasonable belief that contraband is about to be removed; (3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought; (4) the information indicating that the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of it and to escape are characteristics in which those trafficking in contraband generally engage.Daniels, 930 F.3d at 401 (citing United States v. Aguirre, 664 F.3d 606, 611 (5th Cir. 2011) (internal quotation omitted)). As particularly relevant to this case, the Fifth Circuit has held that exigent circumstances arise when the defendant becomes "aware that the police were on his trail" and there was a risk that the defendant may be "attempting to destroy evidence." See id. (internal brackets omitted).
The Court finds in the present case there was both probable cause and exigent circumstances that justified the warrantless seizure of Defendant's truck and cell phone. Therefore, the Court recommends the Motion be denied as to the challenged items of evidence pursuant to the exigent circumstances exception.
1. Defendant's Cell Phone on His Person
"Probable cause determinations are not made on the basis of factors considered in isolation, but rather on the totality of the circumstances." United States v. Banuelos-Romero, 597 F.3d 763, 767 (5th Cir. 2010) (internal citations omitted); see also United States v. Newman, 472 F.3d 233, 237 (5th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) ("Probable cause exists when under the 'totality of the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.' "). Additionally, probable cause determinations must be assessed from the "standpoint of an objectively reasonable police officer." United States v. Saucedo-Munoz, 307 F.3d 344, 351 (5th Cir. 2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).
Courts across the circuits have found that probable cause exists "simply because cell phones discovered in proximity to crime or contraband almost invariably contain incriminating evidence," while others find probable cause simply because "cell phones are such common and integral tools of the criminal trade that their incriminating nature is immediately apparent." United States v. Harris, No. 3:15cr170, 2016 WL 1441382, at *11-12 (E.D. Va. Apr. 11, 2016) (collecting cases); see also United States v. Agbodjan, 871 F. Supp. 2d 95, 100 (N.D.N.Y. 2012) (finding probable cause to seize the defendant's cell phones because the case agent "knew that a computer had been used in the . . . scam," was aware the defendants had been communicating through electronic messaging, and knew from his experience that other electronic devices are used interchangeably with computers due to their portability). There is more than a "fair probability" that evidence of the crime would be found on Defendant's phone. See Newman, 472 F.3d at 237 Here, the Victim's wife had informed law enforcement that Defendant had deleted text messages between himself and the Victim from the Victim's phone. See Dkt. 119 at 4. Detectives also knew that Defendant and the Victim had communicated via cell phone on the day of the Victim's death. See id. at 7. For these reasons, the Court finds there was probable cause to seize Defendant's cell phone.
Second, the Court finds that exigent circumstances justified the seizure. "Importantly, prevention of 'the imminent destruction of evidence' is an exigent circumstance that may warrant seizure of property pending issuance of a warrant." Beard, 2022 WL 1321549, at *11 (internal quotations omitted); see also McNeely, 569 U.S. at 149, 133 S.Ct. 1552. When considering whether the seizure falls within the exigent circumstances exception, the key question for the Court's analysis is whether Detectives' "steps preceding the seizure [were] lawful" and did "not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment." King, 563 U.S. at 462-64, 131 S.Ct. 1849. The King Court made clear the exigent circumstances exception applies even when officers speak with suspects after the officers have probable cause. See id. at 467, 131 S.Ct. 1849 ("[L]aw enforcement officers may wish to obtain more evidence before submitting what might otherwise be considered a marginal warrant application" and "prosecutors may wish to wait until they acquire evidence that can justify a search that is broader in scope than the search that a judicial officer is likely to authorize based on the evidence then available."). Officers "are under no constitutional duty to call a halt to [a] criminal investigation the moment they have the minimum evidence to establish probable cause," and may not be faulted for failing to apply for a warrant at the earliest possible time. Id.
The Interview was part of an ongoing investigation into the death of the Victim (the "Investigation") that arose from an investigation into Defendant's alleged Ponzi scheme. During the Interview, Defendant allegedly did not answer Detectives' questions truthfully. See Dkt. 119 at 4. At the conclusion of the Interview, Detectives informed Defendant that he was a suspect in the Investigation of the Victim's death. See Interview Recording at 00:59:00-1:08:00. Up until being informed by Detectives, Defendant was assumedly not aware that he was a suspect in the Victim's death, as the medical examiner had ruled the Victim's death a suicide. See Dkt. 119 at 7-8. But once Defendant was alerted to the Investigation and that Detectives were "on [his] trail", the exigency arose. Diaz, 435 F. App'x at 332; see also United States v. Mata, 517 F.3d 279, 287 (5th Cir. 2008).
Defendant asserts in his reply to the Government's supplemental response that "[i]n Detective Bonner's mind, [Defendant] was either going to admit to criminal activity, or he was going to lie . . . [t]his was a ruse designed, coordinated, and executed by agents of the Government." Dkt. 126 at 3. The King Court has made clear that the Court should look to "objective factors, rather than subjective intent" and has rejected the "bad faith" test that Defendant asserts. See King, 563 U.S. at 464, 131 S.Ct. 1849. As Detective Bonner did not take any unlawful steps preceding the seizure, Defendant's argument must be rejected. However, even if the Court were to look to subjective intent, Detective Bonner could not have known Defendant would bring to the Interview the cell phone allegedly used to communicate with the Victim prior to the Victim's death.
Furthermore, the easily destructible nature of the evidence—text messages—supports Detectives' belief that there were exigent circumstances and the evidence on the cell phone may be destroyed. Because Defendant was not under arrest following the Interview, Detectives could have reasoned that leaving the cell phone with Defendant would lead to the deletion of text messages. See Diaz, 435 F. App'x at 332; see also United States v. Knowles, 207 F. Supp. 3d 585, 604 (D.S.C. 2016) (collecting cases) (finding courts routinely allow warrantless seizures of laptop computers and other electronic devices under the exigent circumstances doctrine because of the fragile and easily destructible nature of digital evidence at issue). As such, it is "not that a cell phone itself that creates an exigent circumstance," but rather whether "a reasonable officer could have believed that the defendant would delete any incriminating evidence on his phone before a warrant could be obtained." United States v. Babcock, 924 F.3d 1180, 1194 (11th Cir. 2019). In this case, Detectives' fear that evidence may be destroyed after Defendant learned he was a murder suspect was concrete, not abstract, as they had been informed by the Victim's wife that Defendant had previously deleted messages related to the alleged murder and Detectives were aware that Defendant had allegedly manipulated the crime scene to make the Victim's death appear to be a suicide. See Dkt. 119 at 3-4. Thus, it is Defendant's alleged destruction of evidence on the Victim's cell phone and manipulation of the crime scene coupled with the easily destructible nature of digital evidence at issue that supports the warrantless seizure of Defendant's cell phone once Defendant became aware he was a murder suspect. See Beard, 2022 WL 1321549, at *11 (finding there were exigent circumstances due to "the ease of destroying or deleting cell phone evidence" and officers' "fear[ ] that [the defendant] would destroy evidence from his phone if they did not secure it pending a search warrant."); see also United States v. Dzionara-Norsen, No. 19-cr-6131G, 2020 WL 1897179, at *10 (W.D.N.Y. Apr. 17, 2020) (collecting cases) (finding the defendant's "awareness of the investigation and its potential to expose him to criminal liability, coupled with the 'fragile and easily destructible nature of . . . digital evidence," provides the exigencies to justify the warrantless seizure).
Additionally, because Detectives seized Defendant's cell phone but did not search it until they acquired a warrant, the initial seizure affected only Defendant's possessory interest in the cell phone and did not implicate a privacy interest. "Courts have considered this lesser interference as a factor when upholding warrantless seizures." United States v. Bradley, 488 F. App'x 99, 104 (6th Cir. 2012) (collecting cases). In Bradley, the Sixth Circuit held that "the brief nature of the intrusion into [the defendant's] possessory interest and the fragility of electronic evidence," outweighed the individual's possessory interest at issue when the Government conducted a warrantless seizure of the defendant's laptop. Id. at 105; cf. Riley v. California, 573 U.S. 373, 388, 396, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ("Both Riley and Wurie concede that officers could have seized and secured their cell phones to prevent destruction of evidence while seeking a warrant . . . [t]hat is a sensible concession"; however "a cell phone search would typically expose to the government far more than the most exhaustive search of a house . . ."). After seizing the cell phone on his person, Detectives obtained a search warrant the following morning and did not conduct a search in the interim. See Dkt. 119 at 4-5; Dkt. 119-1 at 9-10. Thus, for the foregoing reasons, the Court recommends the Motion be denied as to the seizure of Defendant's cell phone pursuant to the exigent circumstances exception.
2. Defendant's Truck
In determining whether probable cause exists to seize a vehicle, the Court considers whether "a reasonably prudent person could believe, based on the facts and circumstances, that the vehicle contains contraband." United States v. Lopez, 2:20-cr-115, 2021 WL 1339165, at *3 (N.D. Tex. Apr. 9, 2021) (citing United States v. Hooker, 416 F. App'x 467, 471 (5th Cir. 2011)).
Evidence from the date of the Victim's death connected Defendant's truck to the alleged commission of the murder, and the truck was believed to store evidence related to the murder. The doorbell video camera mounted on the Victim's front door showed Defendant as the only person to enter the Victim's home prior to the discovery of the Victim's body on the day of the Victim's death. See Dkt. 119 at 3. The video also showed that Defendant arrived and left the Victim's home in the truck. See id. Additionally, Detectives were aware that Defendant's truck contained detailed data in its computer system, which might store text messages sent and received by Defendant to the Victim. See id. at 7, 10. Therefore, Detectives had probable cause to believe that Defendant's truck was an instrument in the Victim's alleged murder and contained evidence related to his murder. See Beard, 2022 WL 1321549, at *10 (finding probable cause for warrantless seizure as the defendant had been seen loading bags into the truck believed to contain evidence of the murder); see also United States v. Williams, No. 19-117, 2020 WL 2573240, at *7 (M.D. La. May 21, 2020) (finding probable cause for warrantless stop and seizure when ongoing surveillance had observed the defendant use the vehicle in drug-trafficking).
The Court also finds there were exigent circumstances that justified the warrantless seizure of Defendant's truck. To some extent, the exigent circumstances exception and the automobile exception are intertwined, as the Fifth Circuit has found that exigent circumstances are supplied by "the fact of the automobile's mobility." United States v. Sinisterra, 77 F.3d 101, 104 (5th Cir. 1996); see also United States v. Wesley, 918 F. Supp. 81, 85 (W.D.N.Y. 1996) (collecting cases) (finding automobile exception and exigent circumstances exceptions are intertwined as the "inherent mobility of automobiles by itself provides the only exigent circumstance needed."). However, "even if some additional factors are required to constitute exigent circumstances" for a warrantless seizure, the Court may consider the possibility whether "the defendant could arrive at any time and drive the vehicle away or remove or destroy evidence in the car." Wesley, 918 F. Supp. at 85 (citing United States v. Reis, 906 F.2d 284, 290-91 (7th Cir. 1990)).
In Robinson v. Cook, the court found that exigent circumstances justified the warrantless seizure of a vehicle suspected in a hit-and-run. 863 F. Supp.2d 49, 69 (D. Mass. 2012), aff'd 706 F.3d 25, 32 (1st Cir. 2013). The officers in Robinson approached the owner of a vehicle believed to be involved in a hit-and-run and informed the owner that they believed his son was involved. Id. at 69-70. As the officers did not make an arrest, the court found there were exigent circumstances to justify a warrantless seizure because the suspects could "abscond with the vehicle" if it was not towed to the police station. Id. at 70. Similarly, in the present case, Detectives informed Defendant he was a suspect in the Investigation at the conclusion of the Interview. See Dkt. 119 at 7-8. As discussed above, the exigency arose at the conclusion of the Interview and, as Defendant was not under arrest, he "would have been free to drive the car away, and perhaps destroy or dispose of evidence, or even the car itself." United States v. Swanson, 341 F.3d 524, 533 (6th Cir. 2003); see also United States v. Orona, 166 F. App'x 765, 766 (5th Cir. 2006) (affirming the district court's finding that exigent circumstances permitted warrantless search of the defendant's vehicle when officers had seen computer containing evidence of the crime loaded into the vehicle); WAYNE R. LAFAVE, SEARCH & SEIZURE § 7.2(B) 559-60 & nn. 88-92 (4th ed. 2004) (collecting cases emphasizing the ability of defendants or third parties to move or tamper with cars not yet searched or seized). Further, Detective Bonner could not have known that Defendant would drive to the Interview in the truck allegedly driven to and from the Victim's house on the date of the Victim's death. See United States v. Rico, 51 F.3d 495, 506 (5th Cir. 1995) (internal quotation omitted) (holding the test for exigency is not whether it was "unexpected," but only whether it was "created" by the Government). Finally, Detectives' warrantless seizure of Defendant's truck only implicated his possessory interest and did not implicate a privacy interest. See Bradley, 488 F. App'x at 104. Following the seizure, Detectives obtained a search warrant for Defendant's truck within a few hours and did not search either its contents or computer storage system in the interim. See Dkt. 119 at 5; Dkt. 119-1 at 1-2. Thus, the Court finds there were exigent circumstances that justified the warrantless seizure of Defendant's truck.
IV. RECOMMENDATION
For the foregoing reasons, the Court recommends that Defendant's Motion (Dkt. 102) be DENIED.
V. ORDER
IT IS ORDERED that any party may serve and file written objections to the findings and recommendations set forth in this Report no later than September 23, 2022, at 12:00 p.m. Usually, a party may serve and file written objections to the findings and recommendations of the magistrate judge within fourteen (14) days after service of the magistrate judge's report. 28 U.S.C. § 636(b)(1)(C). As such, the Court conferred with the parties on the record regarding an expedited briefing schedule, as well as an expedited objection period. Because this case is set to proceed to trial on September 26, 2022, see Dkts. 90; 91, the Court finds an expedited objection deadline is necessary. See Dkt. 121.
A party filing objections is entitled to a de novo review by the district court of the findings and conclusions contained in this report only if specific objections are made, and failure to timely file written objections to any proposed findings, conclusions, and recommendations contained in this report shall bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted by the district court, except on grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten (10) to fourteen (14) days).
So ORDERED and SIGNED this 19th day of September, 2022.