Opinion
4:23-CR-00136-ALM-BD
12-19-2024
UNITED STATES OF AMERICA v. OLAMIDE OLATAYO BELLO (1)
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
BILL DAVIS, UNITED STATES MAGISTRATE JUDGE
Proceeding pro se, defendant Olamide Olatayo Bello filed three motions to suppress evidence based on alleged Fourth and Fifth Amendment violations. Dkts. 353, 354, 357. The motions were referred to me in accordance with 28 U.S.C. § 636. Dkt. 364. The government filed a court-requested response to all three motions. Dkt. 381; see Dkt. 366. After considering the parties' initial filings, the evidence and arguments presented at a hearing on the motions, and the parties' posthearing briefs, Dkts. 403, 415, the court will recommend that the motions be granted in part and denied in part.
BACKGROUND
Bello was indicted for conspiracy to commit wire fraud and conspiracy to commit money laundering. Dkts. 1 (sealed original indictment), 24 (redacted original indictment), 376 (first superseding indictment). The court issued an arrest warrant for Bello and a search warrant for his house. Dkt. 13 (sealed arrest warrant); No. 4:23-MJ-00344-KPJ-1 (E.D. Tex.), Dkt. 2 (search warrant). Armed with those warrants, agents with the Federal Bureau of Investigation (“FBI”) arrested Bello, searched his house, and seized electronic devices that they found there.
Bello made his initial appearance the next day and was released on conditions. Minute Entry for June 22, 2023; Dkt. 46 (sealed). A pretrial-services officer later petitioned the court for an arrest warrant based on Bello's alleged violation of three conditions of his pretrial release. Dkt. 122 (sealed). The court granted the petition, issued the warrant, and held a revocation hearing. Dkts. 124 (sealed), 125 (sealed); Minute Entries for Aug. 17 and 22, 2023. Based on testimony from FBI Special Agent Jason Rennie, the court ordered Bello detained pending trial. Dkt. 139.
More than a year later, Bello filed the motions to suppress at issue here, requesting that all of the evidence collected during the search of his house be suppressed. Bello represented himself at the hearing on those motions. And after the court admonished him of the risks of doing so and he consulted with his standby counsel, Bello also testified, in narrative form, in support of his motions. Minute Entry for Dec. 13, 2024. Special Agent Rennie testified for the government. Bello presented a series of screenshots of WhatsApp messages and a letter from AT&T describing the IP addresses associated with his house as exhibits. He also directed the court's attention to its detention order, Dkt. 139. The government introduced a copy of the warrant, the warrant application, a photograph of Bello's front door, and a disc containing an audio recording made at Bello's house while agents executed the search warrant.
DISCUSSION
I. Alleged Fourth Amendment Violations
Bello argues that the agents who executed the search warrant violated his Fourth Amendment rights in several ways. He asks the court to suppress all evidence obtained from the search of his house, including evidence found on two cell phones and two computers. The government contends that Bello lacks standing to challenge the search of the phones, that the Fourth Amendment was not violated, and that, even if it was, the good-faith exception to the exclusionary rule applies.
The government is correct only in part. Bello does not lack standing to raise his Fourth Amendment claims. But because the good-faith exception applies to each alleged violation, Bello's motions to suppress should not be granted on Fourth Amendment grounds.
A. The Fourth Amendment, the exclusionary rule, and the good-faith exception
The Fourth Amendment protects a person from unreasonable searches and seizures. “With some limited exceptions, it requires police officers to secure a search warrant supported by probable cause prior to effecting a search or seizure.” United States v. Ortega, 719 Fed.Appx. 319, 323 (5th Cir. 2018). “Oftentimes, . . . information supporting probable cause for the issuance of a warrant is provided by an affidavit created by a law enforcement officer.” Id.
Although the Fourth Amendment “contains no provision expressly precluding the use of evidence obtained in violation of its commands,” the court-created “exclusionary rule” has that effect. United States v. Leon, 468 U.S. 897, 906 (1984). “[W]here its deterrence benefits outweigh its substantial social costs,” the rule prohibits the government's use, usually just at trial, of evidence obtained in violation of the Fourth Amendment. Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998).
A defendant seeking to exclude evidence “normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005). When an officer relies on a search warrant issued by a judge with “no stake in the outcome of particular criminal prosecutions,” there is usually “no police illegality and thus nothing to deter.” Leon, 468 U.S. at 917, 920-21. For that reason, “[e]vidence should not be suppressed when law enforcement obtained it in good-faith reliance on a warrant.” United States v. Morton, 46 F.4th 331, 335 (5th Cir. 2022), cert. denied, 143 S.Ct. 2467 (2023). When that good-faith exception to the exclusionary rule applies, the court need not decide whether the officer violated the Fourth Amendment. See United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003).
B. Bello's standing to raise a Fourth Amendment claim
When personal property is searched or seized, the Fourth Amendment comes into play only if the person claiming its protection has a reasonable expectation of privacy in the property. United States v. Gaulden, 73 F.4th 390, 393 (5th Cir. 2023). To have that expectation, a defendant must have had “a possessory interest in the personal property searched,” and the court considers “whether he exhibited a subjective expectation of privacy in that personal property, and whether he took normal precautions to maintain that expectation of privacy.” Id. The analysis may also include whether the defendant had a right to exclude others from using the property. See United States v. Finley, 477 F.3d 250, 258-59 (5th Cir. 2007), overruled on other grounds by Riley v. California, 573 U.S. 373 (2014).
A person need not own a cell phone to have a reasonable expectation of privacy in the data stored on it. In Finley, the Fifth Circuit held that an employee had a reasonable expectation of privacy in the call records and text messages on a company cell phone because he was permitted to use it for personal business and took normal precautions to protect his privacy. 477 F.3d at 25859; see also, e.g., Dead River Co., LLC v. Boyington, No. 2:22-CV-00049-JAW, 2022 WL 5162053, at *2 (D. Me. Oct. 5, 2022) (similarly concluding that the defendants had a reasonable expectation of privacy in information stored on company-owned phones).
In other scenarios, a person will not have a reasonable expectation of privacy in data on a shared phone. In United States v. Beaudion, for instance, the court concluded that the defendant lacked a reasonable expectation of privacy in data found on a cell phone that he shared with his girlfriend because the girlfriend was the phone's primary user, she had the phone number long before she met the defendant, her parents paid the phone bill, she possessed the phone throughout the day of the arrest, and there was no indication that the defendant used or possessed the phone outside of her presence. 979 F.3d 1092, 1099 (5th Cir. 2020).
At the suppression hearing here, Bello claimed that the seized phones were not his but rather his companies'. He asserted, however, that he had a privacy interest in them because he possessed them. In the government's view, Bello's privacy interest is “mixed,” and even if the court concludes that he has standing to bring a Fourth Amendment claim with respect to the phones, the motion to suppress should be denied on other grounds. Dkt. 403 at 2-4.
Bello has standing. He testified that he was holding two phones-a Samsung phone and an Apple iPhone-when agents entered his house to execute the search warrant. True, he also testified that they were not his personal phones, that they instead belonged to companies he owned, and that they were used by several employees. But those facts do not overcome his expectation of privacy in the phones. Even if Bello did not own the phones and shared them with other people, his testimony indicated that he was their primary user. In addition to having had physical possession of the phones, Bello testified that he had the passwords to them and that he ensured that the phones were not misused by company employees, explaining how he required employees to follow a specific procedure to access the phones. Bello therefore exhibited a subjective expectation of privacy in the phones and took normal precautions to maintain that expectation. He did not need to show anything more to establish standing.
C. The applicability of the good-faith exception to the exclusionary rule
Bello argues that the good-faith exception does not apply here because the FBI agent who applied for the search warrant misled the judge who issued it. Dkt. 354 at 2, 5. Specifically, he faults the agent's application and accompanying affidavit for not stating that his house was a “data center,” id. at 5, which the court understands Bello to mean a site used to provide internet access to more than just family members living together in a residence. In Bello's view, the judge who signed the warrant would not have found probable cause had she known that information, presumably because it would be unclear who committed the alleged illegal activity using Bello's IP address. The government disagrees, arguing that Bello could not prove that (1) his house was a data center, (2) the agent knew that the house was a data center when he applied for the search warrant, or (3) Bello's “data center” theory would have negated probable cause to issue the warrant.
The good-faith inquiry is “confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the [judge]'s authorization.” United States v. Pope, 467 F.3d 912, 916 (5th Cir. 2006). Although searches based on warrants “rarely require any deep inquiry into reasonableness,” Leon, 468 U.S. at 922, the good-faith exception does not apply when the judge who signed the warrant was misled by information that the officer “knew was false or would have known except for reckless disregard of the truth,” Payne, 341 F.3d at 399.
To be entitled to a hearing on the question of good faith, a defendant must show that: (1) the officer omitted a fact with deliberate falsehood or reckless disregard for the truth; and (2) had the information been included, the court would not have found probable cause. Franks v. Delaware, 438 U.S. 154, 171-72 (1978); United States v. Jefferson, 89 F.4th 494, 504-05 (5th Cir. 2023). To show deliberate falsehood or reckless disregard for the truth, the challenger must make an offer of proof. Franks, 438 U.S. at 171. He “should point out specifically the portion of the warrant affidavit that is claimed to be false” and provide “a statement of supporting reasons.” Id. “Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Id. If the challenger fails to make that showing, the court may find that the good-faith exception applies without holding a hearing. See id. at 172; United States v. Kendrick, 980 F.3d 432, 438-42 (5th Cir. 2020) (affirming the denial of a motion to suppress after the district court concluded, without holding a Franks hearing, “that there were no deliberate falsehoods in the challenged affidavit”).
Bello cannot satisfy either prong of Franks.
On the first prong, Bello did not make an offer of proof to show that Agent Rennie omitted a fact from his warrant affidavit with deliberate falsehood or reckless disregard for the truth, and nothing at the hearing suggested that happened. As already noted, Bello points out that Agent Rennie did not state in the affidavit supporting his warrant application that the house was a “data center.” Dkt. 354 at 5 (citing terms defined in 47 U.S.C. § 230, part of the Communications Decency Act of 1996). But Bello did not provide a statement of supporting reasons or any reliable statements of witnesses suggesting that Rennie knew that information when he applied for the warrant.
Without providing any context, Bello instead relies on “Appeal Number 24-40569 Exhibit 5.” Dkt. 354 at 2. The quoted language appears to refer to a Fifth Circuit appeal of a judgment in a habeas corpus proceeding that Bello filed. See No. 4:24-cv-00549-ALM-BD (E.D. Tex.), Dkt. 13. Bello filed that appeal more than a year after Rennie applied for the warrant. No. 4:24-cv-00549-ALM-BD (E.D. Tex.), Dkt. 22. No “Exhibit 5” from that appeal was attached to any of Bello's suppression motions or introduced at the hearing.
Bello also questioned Agent Rennie at the hearing about his knowledge of the data center. Bello argued that Rennie should have known that Bello's house was a data center because, before applying for the warrant, he received information from AT&T showing that Bello's house had a block of IP addresses associated with it rather than just one IP address. Bello also argued at the hearing that, upon entering the house and seeing several computer servers, Agent Rennie should have known that the house was a data center. But neither argument shows that Rennie's affidavit omitted a fact with deliberate falsehood or reckless disregard for the truth.
On the second Franks prong, even if the court had known that Bello's house was being used as a data center, it would still have found probable cause to issue the warrant. Probable cause is not a high standard of proof. The court may issue a search warrant when, after considering the totality of the circumstances, it determines that “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), and that determination is afforded significant deference, Leon, 468 U.S. at 914.
Here, the warrant affidavit included a chart of fraudulent loan applications allegedly signed for by Bello himself using an IP address associated with his house. No. 4:23-MJ-00344-KPJ-1 (E.D. Tex.), Dkt. 1 at 21-22. It also stated that several of Bello's co-conspirators paid him 22-32% of the fraudulent-loan funds that they received from loan applications submitted from that same IP address. Id. at 18. Regardless of whether the house was being used as a data center, those facts supported a finding of probable cause to search Bello's house and devices.
D. The unavailability of suppression as a remedy for the alleged Fourth Amendment violations
Bello argues that suppression of all evidence obtained from the search of his house is required because the government violated his Fourth Amendment rights in two ways. First, he argues that the agents who executed the search warrant forced their way into his house instead of knocking and announcing their presence. Second, he argues that evidence of WhatsApp messages relied on at his detention hearing was tampered with. Neither argument supports suppression of the evidence seized pursuant to the warrant that the government obtained, so the court will recommend that no evidence be suppressed based on Bello's Fourth Amendment contentions.
1. Alleged forced entry
Bello argues that the agents who executed the search warrant violated 18 U.S.C. § 3109, which establishes a “knock and announce” rule, by using force to enter his house. Dkt. 354 at 2, 4. He argues that all of the evidence obtained through the search of his house should therefore be suppressed. The government argues that the agents did not force entry and that, even if they did, suppression would not be the proper remedy. The court agrees with the government.
Section 3109 provides that an officer “may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance.” “[S]uppression,” however, “is not the remedy for a violation of § 3109.” United States v. Bruno, 487 F.3d 304, 306 (5th Cir. 2007). Perhaps civil liability is. See Hudson v. Michigan, 547 U.S. 586, 597-98 (2006) (discussing the availability of 42 U.S.C. § 1983 and Bivens actions for violations of the common-law knock-and-announce requirement that § 3109 codified). Whether that remedy is available falls outside the scope of this report and recommendation on Bello's motions to suppress.
2. Allegedly untrustworthy evidence
Based on discovery produced by the government after his detention hearing, Bello argues that WhatsApp messages that the government used to support detention had been tampered with, that the person who provided those messages to the government lied about them, and that it is doubtful that Bello was truly the author of a Microsoft Word document used to try to coerce that person. Dkt. 353 at 3-7. According to Bello's testimony at the suppression hearing, he was not the source of the messages. Agent Rennie's testimony was consistent with that; Rennie testified that Sabur Yusuff, one of Bello's codefendants, voluntarily provided the messages.
The Fourth Amendment prohibits unreasonable searches and seizures. Because the allegedly unreliable evidence that Bello identified was obtained voluntarily from a codefendant, there was no search or seizure and therefore no basis for a Fourth Amendment challenge regarding this category of evidence.
Construed liberally, see, e.g., United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983), Bello's motion could be viewed as a request to reopen the question of his pretrial detention based on the allegedly unreliable evidence. But such a request would find no home in Bello's motions to suppress. See, e.g., United States v. Cuevas, No. 1:24-CR-00002-BLW-1, 2024 WL 4452660, at *4 (D. Idaho Oct. 9, 2024) (declining “to extend the exclusionary rule into the pretrial release revocation context”); United States v. Turner, No. 5:21-CR-494-OLG, 2022 WL 1192466, at *4 (W.D. Tex. Apr. 21, 2022) (noting that, under 18 U.S.C. § 3142(f), “a judicial officer may . . . rely on matters brought out at the hearing which would not be considered as evidence under traditional trial standards”) (quotation marks omitted); United States v. Burciaga, No. 08 CR 1541 MV, 2011 WL 13285629, at *3 (D.N.M. July 29, 2011) (agreeing that the exclusionary rule “does not extend to the detention determination”); see also infra Part III.
It would also lack merit. Detention may be reopened if a court “finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing” on “whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(f)(2)(B). New evidence has “material bearing” if it “relate[s] in some significant or essential way to the decision whether to detain.” United States v. Worrell, No. 1:21-cr-00292-RCL, 2021 WL 2366934, at *9 (D.D.C. June 9, 2021) (emphasis omitted) (citing United States v. Cisneros, 328 F.3d 610, 614 (10th Cir. 2003)). The purpose of § 3142(f)(2)(B) is “to allow parties to present unknown information that increases the chances the defendant appears for [his or her] criminal hearing[] or decrease[s] the danger the defendant poses to an individual or the community as a whole.” United States v. Martin, No. 13-00466 JSW (KAW), 2015 WL 1738362, at *2 (N.D. Cal. Apr. 13, 2015).
The court ordered Bello detained based, in part, on Agent Rennie's testimony at the detention hearing. Rennie credibly testified that Bello, who also went by “David Bello,” tried to coerce his codefendants not to give information to the government after they were first arrested. Then, two days after Bello's release, someone contacted codefendant Sabur Yusuff using two Nigerian phone numbers. Yusuff had never communicated with anyone using those numbers before. But Bello had. One of the numbers sent Yusuff a Microsoft Word document that instructed him not to cooperate with, and to provide a false narrative to, the government. The metadata associated with that document revealed that “David Bello” authored it. Bello had also previously told a codefendant (whether Yusuff or someone else is unclear) that an unnamed group of people in the United States would commit acts of violence if they were not paid 30 percent of the loan proceeds from the government.
Bello claims that, since his detention hearing, discovery has revealed that Yusuff lied about forwarding a WhatsApp message to his wife because Yusuff's phone does not show that the message was forwarded. He also claims either that some WhatsApp messages were deleted and then restored or that they were edited after being sent (in one instance, for example, to change the spelling of “asuure” to “asure”). Even if true, that information has no material bearing on the question of whether “there are conditions of release that will reasonably assure the appearance of” Bello at future hearings or “the safety of any other person and the community.” 18 U.S.C. § 3142(f)(2)(B). Notwithstanding the points that Bello makes now, the court would still have found probable cause to believe that he committed a crime while on release, and it would still have found clear and convincing evidence that he violated a condition of his release by arranging for Yusuff to be contacted and coerced. See 18 U.S.C. § 3148(b).
In any event, and as already noted, Bello's argument on this point could not be a proper basis to grant a motion to suppress. No more is needed to deny the motions at issue here.
E. The irrelevance of Bello's consent or lack of consent to the search of the phones
Bello asserts that he did not consent to the search of the phones and that, even if he did, he did not consent to agents downloading their contents. Dkt. 357 at 2-3. At the suppression hearing, Bello also claimed that the warrant did not authorize the agents to seize any cell phones. Based on those assertions, he seeks suppression of all evidence obtained from the phones. Id. at 16. Once again, he is not entitled to that relief.
The search warrant authorized agents to seize all “records relating to violations of 18 U.S.C. § 1349 (Conspiracy to Commit Wire Fraud), those violations involving Olamide Olatayo Bello or co-conspirators and occurring after January 1, 2020,” including “[c]omputers or storage media used as a means to commit the violations” and any “passwords, encryption keys, and other access devices that may be necessary.” No. 4:23-MJ-00344-KPJ-1, Dkt. 2 at 5-6. The warrant defined “computer” to include “all types of electronic, magnetic, optical, electrochemical, or other high speed data processing devices performing logical, arithmetic, or storage functions, including desktop computers, notebook computers, mobile phones, tablets, server computers, and network hardware.” Id. at 7 (emphasis added). It also authorized “a review of electronic storage media and electronically stored information seized or copied pursuant to this warrant in order to locate evidence, fruits, and instrumentalities described in this warrant.” Id.
In short, the warrant that the government obtained authorized it to search the phones. That means the government did not need Bello's consent to search the phones or download their contents. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (reflecting that a lawful search may be based on either a warrant or consent).
F. The unavailability of suppression for evidence that was not seized
Bello appears to fault the government for not seizing everything that the warrant authorized it to seize. Dkt. 354 at 5. But again, Bello's motions are for suppression of evidence. To the extent that evidence remains unseized, the court cannot suppress it.
II. Alleged Fifth Amendment Violations
Bello argues that federal agents violated the Fifth Amendment by compelling him to unlock the seized cell phones and computers and to produce login passwords for the two cell phones and the two computers after he invoked his right to an attorney. Dkts. 354 at 2-3, 357 at 2. In response, the government argues that, even if a Fifth Amendment violation occurred, the evidence obtained from the seized devices is admissible under the “inevitable discovery” doctrine.
The government failed to meet its burden to show that it did not violate Bello's Fifth Amendment rights. Even so, the court concludes that suppression of the iPhone data is not warranted because the government likely could have accessed it without knowing the iPhone's password. But because the government did not produce evidence sufficient to support the same conclusion with respect to either the Samsung cell phone or the two computers, the evidence obtained from those sources should be suppressed.
A. The Fifth Amendment and case law addressing compulsion of passwords
The Fifth Amendment provides that “[n]o person shall . . . be compelled in any criminal case to be a witness against himself.” “To use an in-custody statement against the defendant, the government must establish that he was warned of his right to remain silent and his right to consult with an attorney.” United States v. Fernandez, 48 F.4th 405, 410 (5th Cir. 2022). “Once adequate warnings have been given, a suspect may knowingly and intelligently waive his Miranda rights and agree to answer questions.” United States v. Cardenas, 410 F.3d 287, 292 (5th Cir. 2005). “When a defendant challenges the voluntariness of a statement, the Government bears the burden of proving voluntariness by a preponderance of the evidence.” United States v. Mendez, 885 F.3d 899, 910 (5th Cir. 2018).
“A statement is not ‘compelled' within the meaning of the Fifth Amendment if an individual ‘voluntarily, knowingly and intelligently' waives his constitutional privilege.” Colorado v. Spring, 479 U.S. 564, 573 (1987) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). “The inquiry whether a waiver is coerced ‘has two distinct dimensions.'” Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran, 475 U.S. at 421. “Whether a waiver of the Fifth Amendment privilege is voluntary depends on the absence of police overreaching, not on free choice in any broader sense of the word.” United States v. Guanespen-Portillo, 514 F.3d 393, 403 (5th Cir. 2008) (cleaned up). “Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran, 475 U.S. at 421. “Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Id. (quotation marks omitted).
To qualify for the Fifth Amendment privilege against self-incrimination, a communication must be (1) testimonial in character, (2) incriminating, and (3) compelled. United States v. Hubbell, 530 U.S. 27, 34 (2000); United States v. Velasquez, 881 F.3d 314, 337 (5th Cir. 2018). “[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 209-10 (1988). Courts are divided on whether the act of providing a password is testimonial.
In an unpublished, nonprecedential opinion handed down last year, the Fifth Circuit affirmed a district court's denial of a motion to suppress text messages found on a defendant's phone after a Fifth Amendment violation. United States v. Guia-Lopez, No. 22-50234, 2023 WL 5236764, at *12 (Aug. 15, 2023). In Guia-Lopez, the defendant invoked his Fifth Amendment right to remain silent by refusing an agent's invitation to talk. Id. at *5. Rather than “scrupulously honoring” his right to remain silent, the agent continued to interrogate the defendant by asking for his consent to search his cell phone and asking him to write down his password. Id. at *5-6. The court concluded that “the district court was correct to suppress the passcode because asking [the defendant] to write down his password was a Fifth Amendment violation because this request was likely to, and did, result in testimonial evidence that implicitly showed [the defendant's] ownership of the phone.” Id. at *6. The Fifth Circuit then went further than the district court, applying the “fruit of the poisonous tree” doctrine to suppress the non-testimonial evidence recovered from the phone as a result of the defendant's unconstitutionally compelled password. Id. at *7. But the court declined to suppress the text messages recovered from the phone, holding that the exclusionary rule's deterrent purpose would not be served by suppression because the agents did not use coercive tactics, the trustworthiness of the text messages was not in doubt, and the government produced evidence that it would inevitably have discovered the text messages using phoneunlocking software. Id.
Less than two years before Guia-Lopez was decided, a federal district court in Texas considered a motion to suppress data collected from electronic devices after agents violated a suspect's Fifth Amendment right and compelled him to provide passwords. United States v. Cheng, No. 4:20-CR-455, 2022 WL 112025, at *1 (S.D. Tex. Jan. 12, 2022). In Cheng, the suspect invoked his right to an attorney. Instead of immediately ending the interrogation, the agents tried to persuade the suspect to waive his right to an attorney and continued to interrogate him. Id. at *3. The court found that the suspect's statement providing the passwords was neither testimonial nor incriminating and thus was not protected by the Fifth Amendment's right against selfincrimination. Id. at *6. In the Cheng court's view, divulging the passwords was not testimonial because it was an act of production akin to providing a key to a safe or producing a decrypted device. Id. And the statement providing the passwords was not incriminating because the only information the government gained from it was certainty that the suspect knew how to unlock the devices, a fact that the court described as a “foregone conclusion” because there was no dispute that he possessed and controlled the devices at the time he was detained. Id. at *9.
Courts outside of this circuit have also reached different conclusions on this topic. Compare, e.g., United States v. Smith, 673 F.Supp.3d 381, 388 n.3 (S.D.N.Y. 2023) (concluding that “being made to produce a phone password - at least, where, as here, there is no real dispute that the person in fact owns the phone and knows its password - does not violate the Fifth Amendment's guarantee against self-incriminating testimony”), and United States v. Spencer, No. 17-CR-00259-CRB-1, 2018 WL 1964588, at *3-4 (N.D. Cal. Apr. 26, 2018) (denying a request for relief from an order compelling the defendant to decrypt his devices because the government showed by clear and convincing evidence that the defendant's ability to decrypt the devices was a foregone conclusion), with In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012) (holding that a suspect's decryption of the contents of hard drives implicated the Fifth Amendment privilege because the decryption “would be tantamount to testimony by [the suspect] of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files”), United States v. Mendez-Bernal, No. 3:19-CR-00010-TCB-RGV, 2020 WL 6495109, at *17 (N.D.Ga. July 22, 2020) (following United States v. Sanchez, 334 F.Supp.3d 1284, 1295 (N.D.Ga. 2018), to suppress a password as incriminatory testimony under the Fifth Amendment when the defendant was not advised of his Miranda rights despite being in custody), report and recommendation adopted, No. 3:19-CR-10-TCB, 2020 WL 5494728 (N.D.Ga. Sept. 11, 2020), SEC Civil Action v. Huang, No. 15-269, 2015 WL 5611644, at *1-4 (E.D. Pa. Sept. 23, 2015) (finding that compelled production of smartphone passwords was testimonial for Fifth Amendment purposes), and United States v. Kirschner, 823 F.Supp.2d 665, 669 (E.D. Mich. Mar. 30, 2010) (quashing a subpoena for testimony about a computer password on Fifth Amendment grounds because the government sought to require the defendant “to divulge through his mental processes his password . . . that will be used to incriminate him”).
At some point, either the Supreme Court or the Fifth Circuit, in a precedential opinion, may provide guidance on this topic that will bind this court. But given the current absence of that guidance, the court will assume that an agent's request for a password to access a device subject to a search warrant is a request for a testimonial statement for Fifth Amendment purposes.
B. The government's failure to meet its burden to show the absence of a Fifth Amendment violation
When a suppression motion alleges violations of the Fifth, rather than the Fourth, Amendment, the government bears the burden to show the absence of a constitutional violation. Fernandez, 48 F.4th at 410; Mendez, 885 F.3d at 910. To meet that burden here, the government was required to produce evidence sufficient to demonstrate that Bello was not “compelled” to divulge his passwords, meaning that he “voluntarily, knowingly and intelligently” waived his privilege against self-incrimination. Spring, 479 U.S. at 573. It failed to do so.
The government provided an audio recording of Bello's interview by two agents during the search of the house. Dkt. 410, Ex. 4 (sealed). The recording captures Bello's questioning by the agents but is hard to make out at times. At the beginning of the questioning, an agent says that he and Bello both signed a notice of rights and Bello then agreed to speak to the agents without a lawyer. It appears that Bello was given mere seconds to review the document, and the audio recording does not illuminate its contents. The agents then questioned Bello about his businesses, number of employees, revenues, and federal loans. It is unclear from the audio recording whether the agents informed Bello that he was suspected of or indicted for conspiracy to commit wire fraud. In fact, Bello told the agents that he did not know why they were there.
After nearly an hour of questioning, Bello invoked his Fifth Amendment right to counsel. The agents immediately stopped questioning him about the alleged conspiracy. They instead described how Bello's arrest and the search of his house would progress. An agent explained that they would be seizing three vehicles and asked Bello if his wife had keys to a different vehicle in the driveway because the agent did not want to leave Bello's wife without transportation. The agent then asked Bello if he wanted to leave behind any jewelry he was wearing, including his wedding ring.
At that point, Bello asked if he could use his phone to make some calls. One of the agents told him that his wife would have to make the calls for him. The agent then asked Bello if he had passwords on his phones. Bello responded that the phones could be accessed with his eyes. The agent then said “We might have you unlock those before you leave.” The recording is faint, but Bello may have responded with “Okay.” The agent asked about whether there was anything in the house that would be problematic (e.g., drugs, guns, money). Bello answered those questions. The agent then explained that his colleagues would have to break things in Bello's house to gain access if they were locked. The agent clarified that he did not want to do that, so he asked Bello if anything was locked. Bello said that his work computer was locked. The agent then said, “What we may do is get your passwords for all that stuff.” Bello may have said “That's fine,” but it is difficult to tell from the recording, which ends at that point. Although the recording reflects that the agents were polite and accommodating throughout the interaction and Bello appears to have answered their questions and otherwise cooperated, it does not reveal what happened later, when Bello provided his passwords.
Bello testified at the suppression hearing that, after he invoked his right to counsel, he was led to his office, where he was coerced into giving the agents the passwords for the two cell phones and the two computers. Again, there is no recording of that exchange, and neither Bello nor Rennie testified to the precise moment when Bello divulged his passwords or provided the details the court would need to determine whether Bello was compelled to provide that information. The government has therefore not met its burden to show that Bello was not coerced into providing his passwords.
The evidence on waiver is likewise wanting. There are two moments on the recording at which agents tell Bello that they might need his passwords and he, faintly, seems to acquiesce. Those snippets do not satisfy the government's burden to show that Bello relinquished his Fifth Amendment right through a “free and deliberate choice rather than intimidation, coercion, or deception.” Moran, 475 U.S. at 421. Nor does the brief exchange in which Bello was apparently presented with a document, which was not described, read from, or introduced as evidence at the suppression hearing, show that he had “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id.
Given the paltry state of the evidence on these points, the court concludes that the government has not met its burden to show the absence of a Fifth Amendment violation. But that is not the end of the inquiry with respect to Bello's motions to suppress. When courts are asked to suppress evidence based on constitutional violations, they ordinarily put the burden on the government to show that the exclusionary rule should not apply. See United States v. Runyan, 275 F.3d 449, 456 (5th Cir. 2001). As explained below, the government introduced credible evidence that it inevitably would have discovered the data from the iPhone. Under two possible applications of the inevitablediscovery doctrine, that showing demonstrates that the exclusionary rule should not apply to the iPhone. The government produced insufficient evidence regarding the inevitable discovery of data recovered from the Samsung cell phone and the two computers, so the exclusionary rule applies to that evidence.
C. The evidence obtained from the iPhone should not be suppressed
Relying on the inevitable-discovery doctrine and Guia-Lopez, the government contends that, even if there was a Fifth Amendment violation when Bello provided the iPhone's password, the evidence obtained from that device should not be suppressed because the government would inevitably have accessed its contents without a password through means used by the FBI's digital forensics lab. Dkts. 381 at 4, 403 at 4. At the suppression hearing and in its supplemental briefing, the government did not attempt to make a similar showing with respect to any other device, explaining that the only useful evidence it obtained came from the iPhone. Dkt. 403 at 4. Whether the court adopts the inevitable-discovery rule as applied by courts outside of this circuit or applies the reasoning of the non-precedential Guia-Lopez opinion, which treated inevitability as a factor to consider in an exclusionary-rule analysis, the conclusion is the same: the evidence obtained from the iPhone should not be suppressed.
The inevitable-discovery doctrine provides that evidence “otherwise suppressible” under the Fourth Amendment “will be admitted if that evidence would inevitably have been discovered by lawful means.” United States v. Walker, 49 F.4th 903, 909 (5th Cir. 2022) (cleaned up). Some courts have applied the doctrine in the Fifth Amendment context, too. E.g., McKathan v. United States, 969 F.3d 1213, 1232 (11th Cir. 2020); United States v. Clark, 683 F.Supp.3d 97, 110 (D. Mass. 2023); United States v. Hooton, No. 2:21-CR-00105-DAD-1, 2023 WL 3582029, at *3-4 (E.D. Cal. May 22, 2023); United States v. Will, No. 5:15-CR-6, 2015 WL 3822599, at *16 (N.D. W.Va. June 19, 2015). To invoke the doctrine, the government must demonstrate (1) a reasonable probability that the evidence would have been discovered by lawful means in the absence of government misconduct and (2) that the government was actively pursuing a substantial alternate line of investigation at the time of the constitutional violation. Walker, 49 F.4th at 909.
In Guia-Lopez, the Fifth Circuit applied the exclusionary-rule balancing test from the Fourth Amendment context, see supra Part I.A., to hold that passwords obtained in violation of the Fifth Amendment should not be suppressed. 2023 WL 5236764 at *7. “The exclusionary rule reaches not only the evidence uncovered as a direct result of the [constitutional] violation, but also evidence indirectly derived from it-so-called ‘fruit of the poisonous tree.'” Mendez, 885 F.3d at 909 (citation omitted). But as already noted, the exclusionary rule applies only “where its deterrence benefits outweigh its substantial social costs.” Utah v. Strieff, 579 U.S. 232, 237 (2016) (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)). The Guia-Lopez panel applied that balancing by considering “the reliability of the evidence, whether the evidence was obtained from severe pressures, and whether suppression is an appropriate sanction.” 2023 WL 5236764 at *7.
Here, there is no dispute about the reliability of the evidence obtained from the iPhone. And despite Bello's claim that he was compelled to give up his passwords, there is also no evidence that the iPhone's contents were obtained as a result of “severe pressures.” Id. So following the lead of Guia-Lopez, the court considers only whether suppression is the appropriate sanction in light of the potential deterrent benefits and the social costs of suppression.
Concluding that “suppressing the[] text messages [from the defendant's cell phone] does not serve a valid or useful purpose” because there would be little or no deterrence of constitutional violations achieved by suppression, the Guia-Lopez panel declined to order that relief. Id. The court credited the government's evidence that, “even if it had not obtained the password, it would have discovered the[] text messages inevitably” through use of phone-unlocking software-and found that evidence to weigh substantially in favor of denying the motion to suppress. Id.
That reasoning applies here. The court finds that the potential deterrent benefit of suppression does not outweigh the substantial cost to society of suppressing the evidence. That means the evidence obtained from the iPhone should not be suppressed.
At the hearing, the government demonstrated through Agent Rennie's testimony that technology became available shortly after the iPhone was seized that could, with certainty, access the iPhone without its password and that the FBI's practice is to house phones at its lab until such technology becomes available. That testimony is similar to evidence that other courts confronting this issue have heard. See, e.g., United States v. Jackson, No. 19-CR-6026CJS, 2020 WL 810747, at *4-5, *11-12 (W.D.N.Y. Feb. 19, 2020) (applying the inevitable-discovery doctrine based on a police investigator's testimony that, at the time of the suppression hearing, he had already successfully accessed ten cell phones like the defendant's without a password and that, even if the technology to access that particular phone did not exist at the time of the phone's seizure, it generally became available within six months), report and recommendation adopted, No. 19-CR-6026 CJS/MWP, 2020 WL 1557416 (W.D.N.Y. Apr. 1, 2020); United States v. Orozco Ramirez, No. 1:17-CR-185-LMM-AJB-01, 2019 WL 2165920, at *9 n.10 (N.D.Ga. Apr. 22, 2019) (noting that the government would have inevitably discovered evidence on a defendant's cell phone without the phone's password because even if the technology necessary for the search was not available when the phone was seized, it became available within several months), report and recommendation adopted sub nom. United States v. Ramirez, No. 1:17-CR-00185-LMM-AJB, 2018 WL 8337421 (N.D.Ga. May 17, 2018). The evidence required on this point is device-specific. See United States v. Coleman, 554 F.Supp.3d 1124, 1157 (D.N.M. 2021) (finding that, without passwords, the government would inevitably have discovered the contents of a Galaxy phone but not the contents of an iPhone, citing testimony that, if agents “get the warrant, then the Galaxy ones are much easier for our software to get into than the iPhones”).
In this case, the government satisfied both prongs of its burden under the inevitable-discovery doctrine with respect to the iPhone. See Walker, 49 F.4th at 909. That means the government's showing was also sufficient under Guia-Lopez, 2023 WL 5236764 at *7.
On the first prong, the government demonstrated a reasonable probability that it would have been able to access the iPhone without a password. Agent Rennie testified that the commercial software needed to access the iPhone became available in January 2024, approximately six months after the iPhone was seized, and that other means of accessing the iPhone became available over a year after the seizure. He credibly testified that at least one of those methods would have granted the government access to the iPhone and that members of the FBI forensics lab had recently accessed iPhones of the same model using those methods.
On the second prong, the government demonstrated that it was actively pursuing a substantial alternate line of investigation at the time of the constitutional violation. Rennie testified that it is FBI forensics lab protocol to house locked devices in a secure location with charging stations until technology becomes available to access them without passwords. It is reasonable to assume that, had Agent Rennie not received the password from Bello, the forensics lab would have stored the phone pursuant to its protocol.
The same cannot be said for the other devices. As already noted, the government put all of its eggs in the iPhone basket, presenting evidence specific to the type of iPhone seized here. Even if the evidence relevant to the second prong of the inevitable-discovery inquiry may have sufficed to satisfy part of the government's burden with respect to the other electronic devices, the absence of evidence on the first prong for those devices means that burden has not been met. For that reason, evidence obtained from the Samsung cell phone and the two computers should be suppressed.
III. Other Remedies
Finally, Bello requests that the court dismiss his indictment and reverse all orders and judgments against him based on the government's alleged Fourth and Fifth Amendment violations. Dkt. 357 at 16. But Bello is currently before the court on motions to suppress evidence, and he cites no authority granting dismissal of an indictment or a reversal of any order or judgment under these facts or in this posture. He is not entitled to that relief. See 3A C. Wright & A. Miller, Federal Practice and Procedure § 686 (4th ed. Supp. 2024) (explaining that “[d]efendants may invoke the protection guaranteed by the Fourth Amendment by filing a motion to suppress the evidence resulting from [an] unconstitutional search or seizure” and that “[t]he remedy of suppressing this evidence is the only remedy available in the criminal case; no authority suggests that the defendant is otherwise entitled to dismissal of the indictment or reversal of the conviction”); see also United States v. Cavalier, 17 F.3d 90, 92 (5th Cir. 1994) (noting that “[a]n indictment is sufficient if it contains the elements of the charged offense, fairly informs the defendant of the charges against him, and [e]nsures that there is no risk of future prosecutions for the same offense”); Dkt. 380 (recommending the denial of Bello's separate motion to dismiss his indictment).
RECOMMENDATION
It is RECOMMENDED that the motions to suppress, Dkts. 353, 354, 357, be GRANTED IN PART and DENIED IN PART. The motions should be granted with respect to the evidence obtained from the Samsung cell phone and the two computers. The motions should be denied with respect to all other evidence, including the evidence obtained from the iPhone.
* * *
Within 14 days after service of this report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
A party 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. Id. § 636(b)(1). Failure to timely file written objections to any proposed findings, conclusions, and recommendations contained in this report will 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. Id.; Thomas v. Arn, 474 U.S. 140, 155 (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 10 to 14 days).
So ORDERED and SIGNED.