Opinion
GJH-18-0468
09-27-2021
UNITED STATES OF AMERICA, Plaintiff, v. EUNICE NKONGHO, Defendant.
MEMORANDUM OPINION
GEORGE J. HAZEL United States District Judge
Defendant Eunice Nkongho has been charged with Money Laundering Conspiracy (“Count II”) and Money Laundering (“Count VIII”). ECF No. 246. Pending before the Court are Defendant's Motion to Suppress Physical Evidence & Fruits Thereof, ECF No. 134, Defendant's Motion to Suppress Statements, ECF No. 135, and Defendant's Motion to Dismiss, ECF No. 137. A hearing was held on October 5, 2020. ECF No. 319. For the following reasons, Defendant's motions to suppress are denied, and Defendant's Motion to Dismiss is granted, in part.
Unless stated otherwise, all facts are taken from Plaintiff's Complaint or documents attached to and relied upon in the Complaint and are accepted as true.
On July 15, 2019, Defendant filed motions to suppress physical evidence and statements made to government officials or agents. ECF No. 134; ECF No. 135. Defendant also filed a motion to dismiss. ECF No. 137. The Government opposed the motions, ECF No. 226, and Defendant filed replies, ECF No. 262; ECF No. 266; ECF No. 263. Defendant also submitted a supplemental filing on the Motion to Suppress Physical Evidence on October 2, 2020. ECF No. 318. At the evidentiary hearing held on October 5, 2020, the Government presented two witnesses: August Merker, a special agent for Homeland Security Investigations (“HSI”), and Janice Horst, a special agent with the Defense Criminal Investigative Service. The Court credits the testimony of both witnesses and will summarize its finding of facts herein.
Because the official transcript of the evidentiary hearing was not immediately available, this section is prepared using the Court's notes and internal recording system.
On December 5, 2016, Agent Merker met with a defense contractor that believed it had a contract with the U.S. Navy for $3.2 million of military equipment. The contractor had communicated with an individual named Daniel Drunz, believing he was a U.S. Navy representative, and had shipped the equipment to a storage location in Chantilly, Virginia. Agent Merker obtained a copy of the contract and determined that it was fake and that no one named Daniel Drunz worked for the U.S. Navy. He then learned that an NCIS investigation was being conducted into 2, 000 televisions that had been delivered to the same address in Virginia under a contract with the same “Daniel Drunz.” Soon after, a moving company located in Montgomery County, Maryland, contacted the FBI concerning a contract it had received to move televisions from several locations in Virginia to the FedEx facility in Hagerstown, Maryland. The FBI inspected one of the trucks and confirmed that the televisions were stolen and had serial numbers matching those shipped to Chantilly, Virginia. Investigators were able to identify individuals who had been involved in moving the stolen products. This led to the execution of a search warrant on February 9, 2017 for the search of two houses, belonging to Janet Sturmer and Khalid Razaq, and multiple storage locations in Virginia. Stolen televisions were found at all of the searched facilities.
Mr. Razaq told investigators that he had been contacted by Peter Utakalu, an individual currently living in Africa. Mr. Utakalu asked Mr. Razaq to rent the storage facilities in Virginia and to transfer the property-both the televisions and military equipment as well as iPhones and iPads-to individuals in California. The stolen property was then sold in California for cash, and the cash was distributed among the scheme's participants. In order to get Mr. Utakalu his share, Mr. Razaq was instructed to give the money to Mr. Utakalu's wife, Defendant Eunice Nkongho, who lived in California. Mr. Razaq said he had done so in approximately September 2016. Mr. Razaq showed investigators WhatsApp communications between himself and Mr. Utakalu on his cell phone confirming these statements, and investigators also subpoenaed FedEx entities, victim companies, and the moving company to corroborate them. Investigators allowed the scheme to continue in order to identify additional participants and found out through that process that Mr. Utakalu was working to move some military equipment from the United States to Mexico.
Agent Merker then became aware that Defendant was planning to travel to Havana, Cuba, and that she would meet her husband there. On March 10, 2017, Agent Merker sent a request to Miami International Airport Customs and Border Protection (“CBP”) asking that she be searched for bulk cash and military equipment at the border on her outbound trip to Cuba. The requested inspection took place on March 11, 2017. CBP officials did not discovery military equipment, but they did find $8,500 in cash, which contradicted her statement to CBP that she was carrying only $5,000. Defendant was traveling with her children and told CBP officials that she was meeting her husband in Havana.
On March 17, 2017, HSI agents asked CBP to seize any electronic devices in the Defendant's possession at the airport upon her return. On March 20, 2017, the Defendant flew from Havana, Cuba to Miami, Florida. CBP seized four cell phones and two laptops belonging to Defendant and her children. The devices were not searched at the airport but were instead transferred to Maryland. They were received on March 21, 2017, and law enforcement obtained a search warrant to examine them on March 29, 2017. The warrant referenced an outbound inspection on March 11 but did not specify that the devices seized on March 20 were first identified during that search. Agent Merker was not sure whether Defendant was provided a copy of the warrant. A forensic examination was conducted of the devices on April 6 and April 7, 2017, and they were returned to Defendant on approximately May 9, 2017. In the intervening period, Defendant hired an attorney to assist her in obtaining the return of the devices.
On October 3, 2018, law enforcement arrested the Defendant at her residence in Chatsworth, California, pursuant to the federal arrest warrant issued by the U.S. District Court for the District of Maryland. ECF No. 226-1 at 2. Defendant invited the agents inside and agents advised her of her Miranda rights inside the doorway. Defendant said she was willing to be interviewed but asked that she first be able to make a call regarding an appointment that morning. Defendant was escorted upstairs to her bedroom to obtain the phone, and once downstairs, she made the call on speakerphone in front of the agents. Agent Horst then began a recorded interview with Defendant. Defendant agreed to call her husband on speakerphone in front of the agents, and during the call, Defendant told her husband that she was being arrested. Before leaving the house, Defendant asked and was allowed to change clothes and to shower. After Defendant and the agents returned downstairs and prepared to leave the house, the agents decided to bring the cell phone with them in anticipation of requesting a warrant to search it. At the time they seized the phone, it was not within Defendant's reach. The phone was placed in “Airplane Mode” and was transferred to HSI agents.
II. MOTION TO SUPPRESS EVIDENCE
Defendant's motion disputes the admissibility of evidence stemming from three events: the border search on March 11, 2017; the border search on March 20, 2017; and Defendant's arrest on October 3, 2018. The Court will address each in turn.
A. March 11 Search
First, Defendant challenges the March 11 search of Defendant's property at Miami International Airport on her way to Cuba, arguing it was unlawful because Agent Merker requested in advance that CBP officials search Defendant's bags and conduct a brief interview. ECF No. 318.
Border searches are a recognized exception to the warrant requirement. See United States v. Aigbekaen, 943 F.3d 713, 720 (4th Cir. 2019). “[T]he Supreme Court has long recognized the federal Government's substantial sovereign interests in ‘protect[ing] . . . territorial integrity' and national security; blocking ‘the entry of unwanted persons and effects, '; ‘regulat[ing] the collection of duties, '; and ‘prevent[ing] the introduction of contraband.'” Id. (internal citations omitted). These concerns are “at [their] zenith” at the border, and an individual's “expectation of privacy is less at the border than it is in the interior.” United States v. Flores-Montano, 541 U.S. 149, at 152, 154 (2004).
Therefore, not only do government agents not need a warrant for a border search, but a routine border search can be conducted without any level of individualized suspicion at all. United States v. Kolsuz, 890 F.3d 133, 137 (4th Cir. 2018) as amended (May 18, 2018) (internal quotation marks omitted). Routine border searches “are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U.S. 606, 616 (1977). Nonroutine searches, however, require particularized reasonable suspicion. Kolsuz, 890 F.3d at 144.
Whether a search is considered routine or nonroutine depends on whether it is “highly intrusive” such that it implicates individual “dignity and privacy interests.” Flores-Montano, 541 U.S. at 152. “Beyond that general guidance, the Court has not delineated precisely what makes a search nonroutine.” Kolsuz, 890 F.3d at 144; cf. Flores-Montano, 541 U.S at 155 (a routine border search can involve removal and disassembly of car's gas tank) with United States v. Montoya De Hernandez, 473 U.S. 531, 541-42 (1985) (16-hour detention for monitored bowel movement pending rectal examination is nonroutine).
Here, the search did not stray beyond the bounds of a routine inspection of Defendant's bags. Although Agent Merker requested that CBP officials search Defendant's bags in advance, Defendant has provided no authority finding that such a tip or flag has any bearing on the permissibility of a border search or whether the search ceases to be routine as a result. If anything, it points to a level of particularized suspicion beyond that required for a border search. Therefore, the March 11 search was lawful.
B. March 20 Search
Defendant challenges the search and seizure of electronic devices conducted on March 20, 2017 upon Defendant's return to the country. ECF No. 134 at 1-9; ECF No. 262 at 2-12; ECF No. 318 at 2. Defendant also contends that the search warrant obtained for the forensic examination of the devices is invalid. ECF No. 318 at 2. The Court first examines the seizure of the devices under the border search exception before turning to the search of the devices pursuant to the warrant.
1. Border Search
As stated above, border searches are a recognized exception to the warrant requirement. see United States v. Aigbekaen, 943 F.3d 713, 720 (4th Cir. 2019), and routine searches do not require individualized suspicion, while nonroutine searches may, United States v. Ramsey, 431 U.S. 606, 616 (1977). In the Fourth Circuit, manual or conventional searches of electronic devices have been found routine, while forensic searches or imaging of such devices are considered nonroutine. See United States v. Kolsuz, 890 F.3d 133, 144 (4th Cir. 2018), as amended (May 18, 2018); United States v. Kolsuz, 185 F.Supp.3d 843, 858 (E.D. Va. 2016), aff'd, 890 F.3d 133 (4th Cir. 2018), as amended (May 18, 2018). In this Circuit, nonroutine searches of electronic devices require both: (1) reasonable suspicion and (2) a nexus to the sovereign interests underlying the border search exception.
Although the Fourth Circuit in Kolsuz and Aigbekaen did not determine whether more than reasonable suspicion was required, Kolsuz, 890 F.3d at 137; Aigbekaen, 943 F.3d at 723, the district court in Kolsuz noted, “defendant cites no case-nor have any been found-that stands for the proposition that more than reasonable suspicion is required for a nonroutine border search or seizure of any kind or extent.” Kolsuz, 185 F.Supp.3d at 858. Thus, the Court here refrains from imposing a higher standard here.
Here, however, the devices were not searched under the border search exception. The devices were not subject to search-conventional or forensic-at the airport, and the eventual forensic search was conducted pursuant to a warrant. Therefore, the question to be decided is not whether the phones were lawfully searched under the border search exception, but instead whether they were lawfully seized under that exception. The Court need not determine whether the seizure itself was routine or nonroutine, as there was a reasonable suspicion underlying the seizure and the requisite transnational nexus existed, satisfying the higher standard for nonroutine search and seizures.
Even were the Court to determine that the search did not satisfy the second requirement, the transnational nexus, the search would nevertheless be permissible based on the good faith exception, as Kolsuz and Aigbekaen outlined the nexus requirement after the search was conducted, and the government agents could have reasonably understood their actions to be lawful if based solely on the existence of a reasonable suspicion. See United States v. Kolsuz, 890 F.3d 133, 147 (4th Cir. 2018), as amended (May 18, 2018) (“[E]ven if a search is judged to be constitutionally flawed in some way, its fruits need not be suppressed if the agents acted ‘in reasonable reliance on binding precedent.'”) (quoting Davis v. United States, 564 U.S. 229, 241(2011)).
Reasonable suspicion has been defined as “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981). The standard is met when a law enforcement officer can point to “specific and articulable facts” and rational inferences that can be drawn from those facts indicating that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 21, 30 (1968). A court's determination in this regard must be based upon the totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 273 (2002). Importantly, as the Supreme Court has made clear, the reasonable suspicion standard relates to ongoing or imminent crime. See Cortez, 449 U.S. at 417. In sum, the Court must determine whether the agents “had a ‘particularized and objective basis for suspecting' defendant of attempting to commit an ongoing or imminent crime.” Kolsuz, 185 F.Supp.3d at 860 (quoting Cortez, 449 U.S. at 417).
Here, the Government has shown that the agents had more than reasonable suspicion to seize the electronic devices. The Government had been informed by a co-conspirator that Defendant was involved in a fraud scheme and that the scheme had been orchestrated by Defendant's husband, Peter Utakalu. The co-conspirator had also said that he provided Mr. Utakalu's share of the scheme's cash proceeds to Defendant. During a routine search and interview on her way out of the country, Defendant had informed government agents that she was traveling to Cuba to meet her husband and had been found to have cash in excess of the amount she had stated to border officials. Notably, no new information was discovered between the seizure of the devices and the successful application for the warrant, which required a finding of probable cause. See United States v. Respress, 9 F.3d 483, 486 (6th Cir. 1993) (“We initially note that because the officers obtained no new investigatory information between the time of the seizure and the time they applied for the search warrant, if there was probable cause to search the suitcase, there was ipso facto probable cause to seize the suitcase.”). Therefore, the Government had more than the requisite level of individualized suspicion to support a nonroutine border search.
Second, regarding the transnational nexus, the Fourth Circuit has determined that “a warrant exception will not excuse a warrantless search where applying the exception ‘would untether the rule from the justifications underlying [it].'” Aigbekaen, 943 F.3d at 720 (quoting Riley v. California, 573 U.S. 373, 386 (2014)). Therefore, to conduct a nonroutine search, “the Government must have individualized suspicion of an offense that bears some nexus to the border search exception's purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband.” Aigbekaen, 943 F.3d at 721. That a crime “commonly involves” a transnational component “as a general matter” is insufficient; the government agent must have some reasonable suspicion that the individual case at hand has the requisite nexus to the United States' sovereign interests underlying the border exception. The Fourth Circuit found this satisfied where a search was conducted to uncover information regarding illegal firearms exports, Kolsuz, 890 F.3d 133, but did not find it satisfied where the devices related to domestic sex trafficking, Aigbekaen, 943 F.3d 713.
Defendant was involved in a scheme concerning the theft of military equipment, the transfer of that equipment across international borders, coordination with a co-conspirator located outside of the U.S., and the transfer of proceeds from the illegal sale of the stolen equipment to that co-conspirator. The Court therefore finds the seizure of the phones sufficiently tied to the interests underlying the border search exception, satisfying the transnational component.
The fact that the devices were transferred to and held in Maryland does not prevent them from falling within the border search exception. The Fourth Circuit has determined that a device seized at the border and transferred to another location for a forensic search falls within the border search exception. See e.g., Kolsuz, 185 F.Supp.3d at 851-52 (“[A]s several courts have held, an off-site forensic search of an electronic device over a long period of time is nonetheless a border search[.]”); United States v. Cotterman, 709 F.3d 952, 961-62 (9th Cir. 2013) (en banc) (applying border exception to forensic examination of laptop computer conducted miles from and days after attempted border crossing); United States v. Saboonchi, 990 F.Supp.2d 536, 54849, 561 (2014) (applying border exception to forensic search of cell phones conducted several hundred miles from border crossing). Given that a seizure, transfer to a separate location, and a search at that second location falls within border search exception, the seizure and transfer alone will as well. Additionally, the Fourth Circuit has clarified that “a nonroutine search's location is not dispositive of whether the border search exception applies; rather, it is the search's relation to the Government's sovereign interests that is paramount.” Aigbekaen, 943 F.3d at 722 (citing Kolsuz, 890 F.3d at 142-43). As the seized items were taken at the border and were tied to transnational crimes, the Court finds the border search exception applies to the seizure of the devices and their subsequent transfer to Maryland.
Finally, Defendant argues that even if the initial seizure was permissible, it became impermissible given the time it took to get a warrant. In determining whether a delay between a seizure and obtaining a warrant is reasonable, the Fourth Circuit has balanced the government's interest in the seizure against the individual's possessory interest in the object seized. See United States v. Pratt, 915 F.3d 266, 271 (4th Cir. 2019). Where a defendant consents to the seizure or is allowed to retain some of the files, her possessory interest in the item will be diminished. See id. The government's interest will be stronger in the case of seizures for probable cause than for reasonable suspicion. See United States v. Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012). While the “brevity” of a delay is an important factor, see id., it is not dispositive. Courts have found 31-and 21-day delays unreasonable in some cases, while finding 45- and 25-day delays reasonable in others. Cf. id. and United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009) with United States v. Vallimont, 378 Fed.Appx. 972, 975-76 (11th Cir. 2010) and United States v. Laist, 702 F.3d 608, 616-17 (11th Cir. 2012).
Agent Merker testified that the application for a warrant was delayed, at least in part, because they were evaluating whether a warrant was necessary for the search. The Court finds that explanation lacking. See Pratt, 915 F.3d at 270 (determining whether to seek a warrant in North Carolina or South Carolina was not a valid justification for a delay); Mitchell, 565 F.3d at 1353 (overwhelmed police resources or other “overriding circumstances” could justify extended delays, but failing to obtain a warrant or pass the case off to another officer to do so before leaving for a lengthy training was not a valid explanation). Additionally, Defendant did not consent to the seizure of the devices and was not permitted to retain any of her files. However, as discussed above, the Court finds the seizure was justified by probable cause, see Respress, 9 F.3d at 486, meaning the Government has a heightened interest in the seized objects. The Court also finds the Government's interest strengthened by the fact that the devices were seized pursuant to the border search exception, which allows for searches to be conducted over a longer period of time and is not subject to the same temporal constraints as a Terry stop, for example. See, e.g., Kolsuz, 185 F.Supp.3d at 851-52 (“[A]s several courts have held, an off-site forensic search of an electronic device over a long period of time is nonetheless a border search[.]”); Cotterman, 709 F.3d at 961-62 (finding that a border search of a device, which may take days “or perhaps weeks or even months, ” is permissible with particularized suspicion); cf. United States v. Place, 462 U.S. 696, 710 (1983) (finding a 90-minute delay impermissible in the context of a Terry stop). Indeed, Defendant has not pointed to a case in which a border search became invalid due to the passage of time prior to obtaining a warrant. See ECF No. 134 at 6-7. Finally, the delay lasted nine days. See Burgard, 675 F.3d 1029 (finding a six-day delay after probable cause seizure reasonable); United States v. Martin, 157 F.3d 46 (2d Cir. 1998) (finding a 11-day delay after probable cause seizure reasonable). Therefore, the Court finds the delay was not unreasonable.
2. Warrant Search of Devices
Defendant argues that the warrant is invalid due to the omission of the fact that the electronic devices were first identified during the search on March 11, 2017, as well as the fact that the March 11 search was prompted by Agent Merker. ECF No. 318 at 1-2.
“As a general rule, the Fourth Amendment requires that law enforcement searches be accompanied by a warrant based on probable cause.” United States v. Kolsuz, 890 F.3d 133, 137 (4th Cir. 2018). “Although the concept of probable cause defies a precise definition, it exists where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found in the place to be searched.” United States v. Richardson, 607 F.3d 357, 369 (4th Cir. 2010) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)) (internal quotations omitted). “A probable cause assessment requires the issuing judge to decide whether, given the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (internal quotations omitted). A magistrate judge's determination of probable cause “is entitled to great deference, ” and this Court's role “is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” United States v. Drummond, 925 F.3d 681, 687 (4th Cir. 2019) (quoting Richardson, 607 F.3d at 369) (internal quotations omitted).
In order to defeat a warrant due to material omissions, the defendant must show that the omissions were “designed to mislead, or . . . made in reckless disregard of whether they would mislead” the judicial officer and that the omissions were material, meaning that their “inclusion in the affidavit would defeat probable cause.” United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990); see also Franks v. Delaware, 438 U.S. 154, 171 (1978) (“A plaintiff's ‘allegations of negligence or innocent mistake' by a police officer will not provide a basis for a constitutional violation.”); id. at 155-56 (defining material as “necessary to the [neutral and disinterested magistrate's] finding of probable cause”). Merely identifying factual omissions is insufficient. See U.S. v. Clenney, 631 F.3d 658, 664 (4th Cir. 2011). To prevail at the hearing, the defendant must prove these points by a preponderance of the evidence. Franks, 438 U.S. at 155-56. Additionally, to determine materiality, a court must “excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the ‘corrected' warrant affidavit would establish probable cause.” Miller v. Prince George's Cty., MD, 475 F.3d 621, 628 (4th Cir. 2007) (quoting Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000).
Here, Defendant argues that the March 11 search was improper, and that failing to include details showing it was unlawful is a material omission, as the magistrate would not have approved the search of the devices had it been known the search was based on information obtained illegally. However, the Court has found the March 11 search lawful. Indeed, the inclusion of additional details concerning that search in the warrant would only bolster the Government's case that there was probable cause. Therefore, the Court will not invalidate the warrant based on the alleged material omissions.
C. October 3 Arrest
Finally, Defendant argues that the warrantless seizure of the phone after Defendant was arrested on October 3 was unlawful, as it was not seized pursuant to an exception to the warrant requirement. The Government argues this was a seizure incident to arrest, but Agent Horst testified that the phone was not within Defendant's reaching distance at the time, so that particular warrantless search exception will not apply. Cf. Chimelv. California, 395 U.S. 752, 763 (1969) (permitting an officer to search, incident to arrest, “the arrestee's person and the area ‘within his immediate control'-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence”); United States v. Robinson, 414 U.S. 218 (1973) (“When officers have probable cause to arrest, they may conduct a full-body search, including pockets and clothing.”). However, the Government's alternate explanation- that the phone was seized for probable cause and due to concerns regarding evidence destruction-succeeds.
An object may be seized in anticipation of obtaining a warrant where “probable cause to believe that a container holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” United States v. Place, 462 U.S. 696, 701 (1983); see also United States v. Young, 909 F.2d 442, 446 (11th Cir. 1990) (“[A] warrantless search and seizure can be justified, ” however, “when probable cause has been established to believe that evidence will be removed or destroyed before a warrant can be obtained.”); see, e.g., United States v. Chadwick, 433 U.S. 1, 13 (finding the seizure and detention of a footlocker “were sufficient to guard against any risk that evidence might be lost” but that a search would have been unreasonable prior to obtaining a warrant); Texas v. Brown, 460 U.S. 730, 749-50 (1983) (Stevens, J., concurring) (a container was seized but could not be searched until a warrant was issued); United States v. Mitchell, 565 F.3d 1347, 1350 (11th Cir. 2009) (a computer hard drive was seized to prevent it from being tapered with before a warrant was obtained); United States v. Burgard, 675 F.3d 1029, 1031 (7th Cir. 2012) (a warrantless seizure of the phone was found lawful “because of exigency and probable cause”); United States v. Vallimont, 378 Fed.Appx. 972, 974 (11th Cir. 2010) (a seizure of a computer was found lawful due to the plain view exception-since the agent was lawfully there, saw the computer, and the incriminating nature of the content was immediately apparent-and the exigent circumstances exceptions-since there was probable cause that it contained contraband and that the evidence would be deleted); United States v. Babcock, 924 F.3d 1180, 1195 (11th Cir. 2019) (“[F]aced with the potential destruction of evidence, they did exactly what Hernandez-Cano suggests they should have done-they seized the phone ‘to prevent the loss or destruction of its contents,' and then obtained a warrant before searching through it.”).
Agent Horst testified that she and the other agents were concerned that Defendant's husband and co-conspirator could remotely delete information stored on the cell phone if they did not seize it, particularly given that Defendant had called him in front of the agents and informed him she was under arrest. Additionally, there was probable cause to believe the phone contained important evidence given the agents' knowledge that Defendant had used it to communicate with co-conspirators about the scheme and that those messages were stored on the device. The Court therefore finds the seizure lawful. As in Babcock, the Court emphasizes that a cellphone itself does not create exigent circumstances. 924 F.3d at 1194. “Taken to its logical conclusion,' that ‘would permit police officers to seize now-ubiquitous cell phones from any person, in any place, at any time, so long as the phone contains photographs or videos that could serve as evidence of a crime-simply because the ‘nature' of the device used to capture that evidence might result in it being lost.” Crocker v. Beatty, 886 F.3d 1132, 1137 (11th Cir. 2018). However, here, as in Babcock, the facts support a finding that “a reasonable, experienced agent certainly could have believed that Babcock . . . would delete any incriminating evidence on his phone before a warrant could be obtained.” 924 F.3d at 1194.
III. MOTION TO SUPPRESS STATEMENTS
Defendant argues that her statements made to government agents during the interview on October 3 should be suppressed on two grounds: first, she was not provided a copy of the warrant, and would not have spoken with them if she was aware of the search of her phones; and second, she should not have been questioned since she was represented by counsel in connection with the investigation. The Court will take them in turn.
A. Failure to Provide Copy of Warrant
Rule 41(f)(3) of the Federal Rules of Criminal Procedure requires an officer who has executed a search warrant to either “give a copy of the warrant and a receipt for the property taken to the person from whom . . . the property was taken” or “leave a copy of the warrant and receipt at the place where the officer took the property.” See United States v. Thompson, 263 Fed.Appx. 374, 379 (4th Cir. 2008). The Fourth Circuit has held that “[t]here are two categories of Rule 41 violations: those involving constitutional violations, and all others.” United States v. Simons, 206 F.3d 392, 403 (4th Cir. 2000). Ministerial violations of Rule 41, such as failing to leave either a copy of the search warrant or a receipt of items seized, are nonconstitutional. Id.; see also United States v. Hurwitz, 459 F.3d 463, 472 (4th Cir. 2006) (holding that Fourth Amendment does not require officers to leave copy of search warrant with property owner following warrant's execution). Such non-constitutional violations justify suppression only where the defendant is prejudiced by the violation or there is evidence that the violation was deliberate. Hurwitz, 459 F.3d at 472 n. 6.
Here, Defendant has not shown any evidence that the violation was deliberate, instead arguing that she was prejudiced by the failure to provide the copy of the warrant. However, Defendant's argument that she would not have consented to the interview had she been aware of the search of her devices after they were taken in March 2017 is undercut by statements she made during interview itself. Defendant said that she believed the agents had searched her phones when they were seized at the airport. Given that Defendant believed the search had occurred, she cannot now argue that she would not have consented to the interview if she had been given the warrant showing precisely that. Because the outcome would not have been different had Defendant been provided the copy of the warrant, the Court finds she was not prejudiced and denies Defendant's Motion to Suppress on that ground. See United States v. Pangburn, 983 F.2d 449, 455 (2d Cir. 1993) (finding no prejudice where search and seizure would not have been different if officers had complied with Rule 41 requirements).
B. Interview of Represented Suspect
Defendant further argues that she should not have been interviewed at all without counsel present, as she had hired an attorney to assist her in obtaining the return of her electronic devices, and Agent Merker was aware that she had obtained representation for that purpose.
The Sixth Amendment right to counsel guarantees a criminal defendant “the right to have counsel present at all ‘critical' stages of the criminal proceedings.” Montejo v. Louisiana, 556 U.S. 778, 786 (2009). “Interrogation by the State is such a stage.” Id. However, this right only attaches when adversarial judicial proceedings commence “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Texas v. Cobb, 532 U.S. 162, 167-68 (2001) (quotingMcNeil v. Wisconsin, 501 U.S. 171, 175 (1991)); see also Moran, 475 U.S. at 430 (“[I]t becomes applicable only when the government's role shifts from investigation to accusation.”). Because judicial proceedings had not yet begun at the time of the interview, Defendant cannot claim a violation of her rights under the Sixth Amendment.
Defendant's argument also fails under the Fifth Amendment. The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations. See Edwards v. Arizona, 451 U.S. 477, 482. Waivers of that right must be voluntary, knowing, and intelligent, and can be established by showing that the individual was informed of her rights and nevertheless responded to further police-initiated custodial interrogation. See id. Even after waiving the right initially, however, an individual can invoke her right to counsel at any time during the questioning, at which point the interrogation must immediately cease until an attorney is present. See Miranda v. Arizona, 384 U.S. 436, 474 (1966). The request for counsel must be clear and unambiguous. See Davis v. United States, 512 U.S. 452, 459 (1994) (“[T]he suspect must unambiguously request counsel.”). This standard is met if a defendant “articulate[s] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis, 512 U.S. at 459 (internal citation omitted) (finding the defendant's statement “Maybe I should talk to a lawyer” did not invoke the right to counsel). The request must also be made “when the defendant is approached for interrogation.” Montejo, 556 U.S. at 797 (“We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation]'”) (quoting McNeil, 501 U.S., at 182, n. 3).
The fact that an individual is represented at the time of questioning is not relevant to whether they waived or invoked their right to counsel under Miranda. In fact, even if a lawyer is attempting to contact the individual being questioned, law enforcement is under no obligation to inform the individual. Moran v. Burbine, 475 U.S. 412, 425 (1986). The Supreme Court refrained from imposing such an obligation precisely to avoid the questions presented here: “To what extent should the police be held accountable for knowing that the accused has counsel? Is it enough that someone in the station house knows, or must the interrogating officer himself know of counsel's efforts to contact the suspect?” Id. (“We have little doubt that the approach urged by respondent and endorsed by the Court of Appeals [requiring law enforcement to inform a suspect of counsel's efforts to reach him] would have the inevitable consequence of muddying Miranda's otherwise relatively clear waters.”).
Here, Defendant agreed to speak with the agents after being properly informed of her Miranda rights. Defendant therefore waived those rights. She does not argue that waiver was involuntary or unknowing. Moreover, Defendant did not ask to speak to an attorney at any point during the questioning. Therefore, the Court finds she validly waived her Fifth Amendment right to counsel and denies Defendant's Motion to Suppress Statements on the basis that she was improperly interviewed without counsel present.
IV. MOTION TO DISMISS
Defendant argues that Counts 2 and 8 should be dismissed because they do not specify the facts of the specified predicate crimes identified as “specified unlawful activity.” ECF No. 137 at 1-2; ECF No. 263 at 3-4; see also 18 U.S.C. § 1956(a)(1) (prohibiting “financial transaction[s] which in fact involve[] the proceeds of specified unlawful activity”). Defendant further argues that Count 8 should be dismissed because it improperly charges Defendant with violations of both 18 U.S.C. § 1956(a)(1)(A)(i) and§ 1956(a)(1)(B)(i) despite alleging only “knowing” conduct, as required under § 1956(a)(1)(B)(i), rather than intent, as required under § 1956(a)(1)(A)(i). ECF No. 137 at 2-3; ECF No. 263 at 3. In the alternative, Defendant requests that Count 8 be modified by striking references to any violation of 18 U.S.C. § 1956(a)(1)(A)(i). ECF No. 137 at 2; ECF No. 263 at 4. Finally, Defendant argues the Government should be required to provide a limited bill of particulars concerning substantive money laundering offenses. ECF No. 137 at 3-6. Although it notes in its Reply that the Government's Second Superseding Indictment “largely addressed” this request, ECF No. 263 at 2, it maintains that the Government should provide a limited bill of particulars providing notice of the specified acts that form the predicate offenses underlying Count 2 and 8's charged money laundering offenses, id. at 4.
Since the filing of this Motion, the Government has filed a Third Superseding Indictment, which renders the Motion to Dismiss the Second Superseding Indictment moot.
V. CONCLUSION
For the foregoing reasons, Defendant's motions to suppress are denied, and Defendant's Motion to Dismiss is denied as moot. A separate Order follows.