Opinion
1:23-cr-20033-GAYLES
03-04-2024
UNITED STATES OF AMERICA v. JERRY VERNELUS, Defendant.
Honorable Darrin P. Gayles Counsel of Record
Honorable Darrin P. Gayles Counsel of Record
REPORT AND RECOMMENDATIONS
LAUREN F. LOUIS, UNITED STATES MAGISTRATE JUDGE
THIS CAUSE is before the Court upon Defendant Jerry Vernelus's Motion to Suppress (ECF No. 157). The Government filed a thirty-eight-page Response in opposition (ECF No. 179), to which Defendant filed a Reply (ECF No. 199). The matter has been referred to the undersigned United States Magistrate Judge by the Honorable Darrin P. Gayles, United States District Judge, for disposition. (ECF No. 162). I convened oral argument and an evidentiary hearing on the Motion. (ECF Nos. 235, 239). Having considered the Motion, Response, Reply, the record, the evidence and argument advanced at oral argument and the evidentiary hearing, and being otherwise fully advised in the premises, the undersigned respectfully RECOMMENDS that the Motion to Suppress be GRANTED for the reasons that follow.
I. BACKGROUND
As described in greater detail below, the City of Miami Police Department (“MPD”) seized Defendant Jerry Vernelus's cell phone pursuant to a warrant issued by a state court in November 2020. MPD was investigating whether Defendant had committed the offense of possession of a firearm by a juvenile delinquent, under Florida law. When reviewing a forensic extraction of the phone, MPD discovered evidence of fraud. A copy of the extraction was then provided to the Federal Bureau of Investigation (“FBI”) in early 2021.
On January 25, 2023, Defendant Jerry Vernelus and his co-defendants were charged in a federal Indictment in the Southern District of Florida with access device fraud and identity-theft related offenses. (ECF No. 3). Vernelus is charged with the following offenses: one count of conspiracy to commit access device fraud, in violation of 18 U.S.C. § 1029(b)(2), from in or around July 2020 through in or around April 2021, (Count 1); one count of possession of fifteen or more unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3) (Count 36); and four counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts 37-40). The Indictment also contains forfeiture allegations.
Defendant now moves to suppress all evidence of access device fraud and personal identifiable information extracted from his phone pursuant to the state search warrant, as unlawfully obtained under the Fourth Amendment. He argues that the state warrant that authorized MPD's search was not sufficiently particularized and therefore unconstitutionally overbroad. Defendant additionally argues that the search performed exceeded the scope of the search authorized by the warrant. More specifically, Defendant argues that the search of his iPhone was unlawful because, first, the state search warrant permitted a generalized forensic examination of his entire phone without any search protocols. Second, Defendant argues the warrant did not incorporate temporal limitations. Third, Defendant contends there was no nexus between the broad categories of data authorized to be seized and evidence of the offense under investigation. Fourth, Defendant asserts the search was unnecessary and law enforcement lacked probable cause for a search as broad in scope as that performed. And fifth, Defendant argues the scope of the search as performed exceeded that which was permitted under the warrant.
The Government asserts that the warrant described with particularity the evidence sought and that the search was limited in scope based on probable cause. The Government also raises multiple exceptions to bar application of the exclusionary rule. First, the Government argues that law enforcement relied on the warrant in good faith, under United States v. Leon, 468 U.S. 897 (1984). Second, the Government argues that the seizure of evidence here was permissible under the plain-view doctrine. Third, the Government argues that law enforcement would have inevitably discovered the evidence at issue through other lawful means, specifically that (i) leads in the FBI's possession would have led the FBI to obtain a warrant for Defendant's phone, and (ii) the evidence would have been discovered through a state probation search. And fourth, the Government argues that the evidence should not be suppressed in light of the independent source doctrine, because the Government later obtained a federal search warrant for Defendant's iPhone.
The federal search warrant was issued on November 21, 2023, the same day the Government filed its Response in opposition to Defendant's Motion to Suppress and three years after the state search warrant issued. (ECF No. 179-2).
II. STATEMENT OF RELEVANT FACTS
A. Search Warrant and Warrant Affidavit
On November 20, 2020, MPD Sergeant Blake Weinger (“Sgt. Weinger”) applied for a warrant to search Defendant's Apple iPhone in MPD's custody. In his probable cause affidavit in support of the application for the warrant, Sgt. Weinger averred that on November 2, 2020, he had observed a video in a Facebook account's private messages that purported to show Defendant aiming a firearm at a passing vehicle occupied by rival gang members. The video, which was marked with a Ring.com logo for Ring branded doorbell cameras, bore a timestamp of September 3, 2020, and was sent via private Facebook message on September 4, 2020 to the Facebook account Sgt. Weinger was reviewing. Sgt. Weinger attested in his warrant affidavit that the video had been sent from a Facebook account known to be associated with Defendant.
According to Sgt. Weinger's warrant affidavit, Defendant's iPhone was seized from his bed during a search of Defendant's residence pursuant to a different search warrant, on November 19, 2020. The phone's case contained Defendant's Florida Learner's License and the picture on the iPhone's lock screen depicted Defendant, which became visible when the phone was picked up. Defendant was transported to a police station and a post-Miranda interview was conducted. Sgt. Weinger averred in his affidavit that, when shown the Ring video, Defendant stated the firearm at issue belonged to his cousin, Tony, whom Defendant declined to further identify.
Sgt. Weinger attested in his affidavit that the Ring video would have been stored in the cloud and could be downloaded onto a computer or a phone. Thus, Sgt. Weinger represented in his affidavit that he sought the search warrant to locate the Ring camera video on Defendant's iPhone to authenticate that video. Sgt. Weinger also sought the warrant to obtain evidence to identify Defendant's cousin, Tony. Sgt. Weinger further asserted that it was important to obtain evidence to rule out that other individuals had used or possessed Defendant's phone.
Upon review of the affidavit in support of the search warrant, a judge of the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida found probable cause to believe Defendant's iPhone contained evidence of possession of a firearm by a juvenile delinquent, in violation of Florida Statutes § 790.23. The court issued the search warrant on November 20, 2020 at 12:14 P.M. The search warrant authorized law enforcement to seize twelve categories of evidence from Defendant's iPhone, as follows:
1. A white Apple iPhone cellular telephone, IMEI number 357333099232989, which is presently stored at the City of Miami Police Department located at 400 N.W. 2nd Ave, Miami, FL.
2. Telephone numbers assigned to the above referenced telephone.
3. Any and all telephone numbers of outgoing telephone calls or incoming telephone calls in order to establish a timeline.
4. Any and all electronic address books, contact lists, telephone number lists, buddy lists, or any other software program used for the electronic compilation
of contact information, so that a comparison can be made with any telephone numbers found pursuant to paragraph three, above, with numbers already stored in the users' contact list in an effort to identify other people that may have conspired with the subjects to violate the above-named statutes.
5. Any and all stored electronic communications, or alphanumeric messages, including but not limited to emails, picture messages, text messages, instant messages, or voicemail, whether drafted, sent, received, opened or unopened, read or unread, and/or forwarded, and/or from any application that discuss the preparation for, the crimes being investigated, the escape from the crime scene, the property stolen in the crime, or identify offenders who conspired to violate the above-named statutes.
6. Any and all data, metadata, records, documents, digital photographs, video recordings, electronic communications, and registry files tending to show ownership and/or dominion and/or control over the above referenced telephone.
7. Any and all digital photographs in the aforementioned telephones in order to identify other subjects that conspired to commit violations of the above-named statutes.
8. Encrypted, deleted and unallocated files on electronic media that contain any of the information listed in previous paragraphs and that can be found in the telephones above mentioned.
9. Any password or encoding access feature. And for this purposes law enforcement is authorized to request the cooperation of the telephone's maker company or any other qualified expert that can decipher the password.
10. Any and all location data, including, but not limited to, GPS, cellular tower, Bluetooth, and Wi-Fi data utilized by the phones and/or location-based services that tend to show the users' location.
11. Any and all data, documents, photographs, audio recordings, video recordings, stored electronic communications, or alphanumeric messages and/or metadata related to same including geolocation metadata in order to show who owned, possessed, used and/or exercised dominion or control of “The Phone.”
12. Encrypted, deleted, and unallocated files on electronic media that contain any of the information listed in previous paragraphs.(ECF No. 157-2).
B. Hearing Evidence
The Government presented three witnesses at the evidentiary hearing on January 25, 2024, who provided testimony regarding the warrant application, the search performed, Defendant's status as a probationer and interactions with probation, and the federal search warrant in this case. The witnesses were: Sgt. Weinger; Florida Department of Corrections (“FDOC”) Correctional Probation Supervisor LaToya Warren (“Officer Warren”); and FBI Special Agent Joseph Lavelle (“Agent Lavelle”). The Government introduced five exhibits (GX1 through GX5) (ECF Nos. 240-1 through 240-5), which were admitted without prejudice to Defendant renewing objections to admissibility at trial.
Sgt. Weinger
The Government first called Sgt. Weinger, who applied for the state search warrant and performed the search of Defendant's iPhone. Consistent with his search warrant affidavit described above, Sgt. Weinger explained that he had searched Defendant's residence on November 19, 2020 pursuant to a different warrant. That search yielded an AR-15 firearm, ammunition, and Defendant's iPhone. The AR-15 firearm found in Defendant's residence was not the same firearm depicted in the Ring camera video. Sgt. Weinger arrested Defendant and interviewed him. During that interview, Defendant told Sgt. Weinger that it was Defendant depicted in the Ring camera video. On cross-examination, Defense counsel elicited that Sgt. Weinger had recognized Defendant in the Ring camera video because there was a prior case involving Sgt. Weinger and Defendant from 2015 or 2016 when Defendant was a juvenile, in which Defendant slammed a door that hit Sgt. Weinger's hand.
As noted above, Sgt. Weinger applied for the state search warrant for Defendant's iPhone on November 20, 2020. Sgt. Weinger testified that a prosecutor had reviewed the warrant application before it was submitted to the judge. Sgt. Weinger further testified that, while he drafted the portion of the affidavit setting forth probable cause, he used a template to draft the remainder of the warrant because there were technological terms he felt were necessary to include. He admitted on cross-examination that he did not tailor the template for this case at all. He testified that the same template is used in every search warrant for every phone. Sgt. Weinger testified that he did not include temporal limitations in the warrant because it was his understanding that the forensic lab could not perform a time-limited extraction of the phone. He further testified that he typically does not include time limitations in cell phone warrants but does include them in cell site and social media warrants. Sgt. Weinger represented that the state court judge did not communicate any concerns regarding the warrant and thus he believed the warrant was legally sufficient.
With respect to the search of the phone, Sgt. Weinger averred that he was searching for any photos or videos of the firearm brandished by Defendant, the Ring camera video, communications establishing how Defendant came into possession of the firearm used in the video, and other evidence to prove the iPhone belonged to Defendant. Sgt. Weinger represented that the Cellebrite program was used to view the extraction of the iPhone. The extraction was not created until December 9, 2020. Sgt. Weinger asserted that the date range of the data on the phone was from summer 2020 forward and that he did not believe any data on the phone was older than 6 months. Though he claimed he was not looking for evidence of fraud on the iPhone, Sgt. Weinger testified that he found fraud “sprinkled in everywhere,” including in text messages, photos, and the Notes application. Sgt. Weinger stated he knew what he observed was fraud based on previous experience, and because what he observed included names, Social Security numbers, and banking account information. Sgt. Weinger also testified that he knew Defendant was associated with a gang known as the “Little Haiti Vultures” or “LHV” and that LHV funded its activities through fraud.
Sgt. Weinger testified that he does not understand what a search protocol is. He could not recall whether he employed search terms at first but testified that he later did employ search terms. Sgt. Weinger's testimony also suggested that he did not filter the Cellebrite report by date, and that he does not have a general practice for searching a phone. The search of the phone took more than two days.
Sgt. Weinger testified that the pictures found on Defendant's phone included pictures of Bitcoin, credit cards bearing other individuals' names, websites from which account information could be purchased, and gift cards, and that these pictures were found in the photo section of Defendant's phone among pictures of firearms. According to Sgt. Weinger, the Cellebrite platform did not permit him to search for only pictures of firearms in the phone extraction and thus he had to manually review each photo. Sgt. Weinger testified that he also observed group chats among Defendant and other members of LHV, including co-defendants in the instant case, in which Defendant requests a “CVV” and other credit card information. Sgt. Weinger testified that these messages were included among messages from two days earlier when Defendant stated he had sold “sticks” and was requesting “zoots” or “zooties,” which Sgt. Weinger represented was slang for rifles and firearms, respectively.
Officer Warren
The Government presented the testimony of Officer LaToya Warren, who is a Correctional Probation Supervisor with FDOC. Officer Warren testified that she is an FDOC liaison who coordinates searches for and with local law enforcement, and who contact her regarding possible violations of probation. In her role, Officer Warren reviews case files, case notes, and an offender's history to determine whether substantial evidence exists to initiate a probation search.
As to this case, Officer Warren testified that Sgt. Weinger had contacted her and advised her that Defendant was “possibly in possession of a firearm or some kind of material, may be fraudulent activity.” (ECF No. 241 at 95:5-7). Officer Warren did not recall whether Sgt. Weinger informed her about a Ring camera video and admitted she does not remember exactly what Sgt. Weinger told her with respect to Defendant. Probation's case file for Defendant also contained an October 9, 2020 email from his wife or girlfriend informing Defendant's supervising probation officer that he “does Fraud,” had hidden firearms from that officer during a search of the residence earlier that day, and violates his curfew. (ECF No. 240-3). Officer Warren became aware of this email when she spoke with Defendant's supervising probation officer. Though she could not recall when she spoke with that officer, she testified that the conversation likely occurred after she had spoken to Sgt. Weinger.
The October 9, 2020 email was admitted as Government Exhibit 3 at the hearing over defense objection, for the effect on the listener.
Officer Warren testified that she would have put together a search based on the information communicated to her from Sgt. Weinger and the October 9, 2020 email in Defendant's case file. She further testified that Sgt. Weinger informed her at some point that he was going to seek a search warrant for Defendant's residence and that, because MPD ultimately obtained a warrant to conduct a search of Defendant's residence, she did not do so though she was present when Sgt. Weinger searched Defendant's residence.
On direct examination, Officer Warren testified that the FDOC Instructions to Offender, admitted at the hearing as Government Exhibit 4, notified Defendant that “Probation officers will conduct home verifications routinely and need to have access to [his] residence” and that “Probation officers have the right to search [his] residence.” (ECF No. 240-4). When asked on cross-examination whether the Instructions to Offender mention any right to search a phone, Officer Warren testified that statutes and caselaw permit such a search even though the FDOC Instructions to Offender referenced only searches of homes. She later agreed on cross-examination that Defendant's probation had been vacated in December 2020, though she did not know the reason why it was vacated.
Officer Warren testified that she has searched hundreds of non-sex offender probationers' phones without a warrant. She testified to her belief that neither probable cause nor reasonable suspicion is required for her to initiate such a search, in light of caselaw and statutory authority. When asked on cross-examination how she goes about searching a phone, she explained that she looks for contraband or anything that would violate supervision by “tak[ing] the phone and look[ing] at it.” (ECF No. 241 at 111:19). If a phone is locked and a probationer refuses to provide Officer Warren with the code to unlock it, she testified that she would ultimately have to seek a warrant. On redirect examination, Officer Warren testified that when contraband is found on a probationer's device, probation shows it to the local law enforcement who accompany probation on the search.
Agent Lavelle
Last, the Government presented the testimony of FBI Special Agent Joseph Lavelle. Agent Lavelle testified that the FBI had begun investigating the LHV gang in August 2020, but had been investigating an opposition gang, 77 Street, since 2019. He testified that Defendant was known to be associated with LHV early in the FBI's investigation, and that LHV was under investigation for violent crimes, carjackings, murder, drive-by shootings, personal identifiable information fraud, theft, bank takeover schemes, and COVID unemployment fraud.
Agent Lavelle testified that he received a copy of the extraction of Defendant's phone from Sgt. Weinger with a copy of the state search warrant. According to Agent Lavelle, Sgt. Weinger informed him that the phone contained pictures and messages of fraud, firearms, gang activity, and unexplained wealth. Agent Lavelle reviewed the state search warrant and then reviewed Defendant's phone extraction. He testified that he initially was reviewing the phone for evidence of firearms, consistent with the state search warrant, but he ultimately observed what he considered to be evidence of personal identifiable information theft, fraud, and bank takeover schemes. Agent Lavelle agreed on cross-examination that the state search warrant authorized a search of any part of the phone and that law enforcement had not considered filtering its search by dates using Cellebrite functionality. He stated on cross-examination that he continued to search the phone for evidence of fraud even though he knew the state search warrant authorized a search for evidence of possession of a firearm by a juvenile delinquent. (ECF No. 241 at 144). He testified on cross-examination that he was still searching Defendant's phone as late as September 2021.
Agent Lavelle averred that this evidence of fraud was immediately apparent to him because the pictures he observed depicted batch downloads of personal identifiable information from Russian-based dark net websites. He also testified that he observed pictures of computer screens depicting a purchase order placed on the dark web to obtain credit card numbers and personal identifiable information. Agent Lavelle asserted that he initially reviewed the messages application on the phone for information about firearms, where he observed discussions and images about firearms among discussions and images of fraud. Agent Lavelle stated that he also observed fraud in both the notes and images section of the phone.
According to Agent Lavelle, and based on the Cellebrite report, Defendant's cell phone stored data from March 2020 through the date of the state search warrant on November 19, 2020, becoming more actively used toward the latter part of 2020.
Agent Lavelle asserted that he initially did not believe that a warrant was needed to review the phone for fraud, though he asserts that obtaining a warrant was discussed. He testified that the basis of the November 2023 federal search warrant was other communications that Defendant had with co-conspirators taken from other devices already in the FBI's possession, in addition to social media posts. Agent Lavelle testified that the FBI had obtained extractions from multiple devices in this case and that the same chat threads, in which fraud was discussed, were found stored across those devices. (ECF No. 241 at 142). Agent Lavelle also testified that Defendant had made social media posts flaunting unexplained wealth despite having no reported income with the Florida Department of Commerce and that co-Defendant Eric Cadet had testified that he was an associate of Defendant. However, Agent Lavelle did not check if Defendant had filed tax returns with the Internal Revenue Service.
Though Agent Lavelle testified that he would have applied for a warrant to search Defendant's phone based on his investigation into LHV if MPD and Sgt. Weinger had not done so, he conceded on cross-examination that he probably would not have applied for the federal warrant in November 2023 if Defendant had not moved to suppress. His November 2023 search warrant affidavit revealed that Sgt. Weinger had found evidence of fraud during Weinger's search of Defendant's phone.
III. LEGAL ANALYSIS
The Court finds that the state search warrant is unconstitutionally overbroad because it fails to sufficiently particularize the scope of the search authorized and thus the warrant amounts to a general warrant. The Court further finds that the good-faith, inevitable discovery, and independent source exceptions do not bar the application of the exclusionary rule in this case.
A. Particularity and Overbreadth
Defendant challenges the state search warrant on both particularity and overbreadth grounds. See United States v. Maali, 346 F.Supp.2d 1226, 1239 (M.D. Fla. 2004) (“Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.”). He argues here that law enforcement was ultimately permitted to perform a forensic search of the entire phone, broader than that for which there was probable cause and that was more intrusive than necessary in view of the applicant's attested-to need for the expected evidence, because the warrant did not sufficiently particularize and therefore limit the scope of the search authorized.
The Fourth Amendment provides that “[t]he 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.
“A warrant which fails to sufficiently particularize the place to be searched or the things to be seized is unconstitutionally over broad.” United States v. Travers, 233 F.3d 1327, 1329 (11th Cir. 2000). The particularity requirement “is aimed at preventing ‘general, exploratory rummaging in a person's belongings.'” United States v. Wuagneux, 683 F.2d 1343, 1348 (11th Cir. 1982) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). It additionally “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Groh v. Ramirez, 540 U.S. 551, 561 (2004).
“A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized.” Wuagneux, 683 F.2d at 1348 . However, “elaborate specificity is unnecessary.” United States v. Betancourt, 734 F.2d 750, 754 (11th Cir. 1984). “The standard ‘is one of practical accuracy rather than technical nicety.'” Id. at 755 (quoting United States v. Johnson, 541 F.2d 1311, 1313 (8th Cir. 1976)). As the Eleventh Circuit recently summarized, the Fourth Amendment's particularity requirement must:
“be applied with a practical margin of flexibility, depending on the type of property to be seized,” and the property description need only be “as specific as the
circumstances and nature of activity under investigation permit.” A warrant does not have to be elaborate. Rather, it need only be as narrow as reasonably expected “given the state of the [investigator's] knowledge . . . and the nature and extent of criminal activities under investigation.”United States v. McCall, 84 F.4th 1317, 1327 (11th Cir. 2023) (internal citations omitted), petition for cert. filed (U.S. Jan. 25, 2024) (No. 23-6609).
Here, the search warrant identified with sufficient specificity the thing to be seized in Category No. 1 as a “white Apple iPhone cellular telephone, IMEI number 357333099232989, which is presently stored at the City of Miami Police Department located at 400 N.W. 2nd Ave, Miami, FL.” (ECF No. 157-2 at 2). However, as to the remaining things to be seized in Category Nos. 2-12, the warrant authorized a general search of Defendant's iPhone.
As set forth in the warrant, the offense under investigation was possession of a firearm by a juvenile delinquent, in violation of Florida Statutes § 790.23. Sgt. Weinger attested in his affidavit that he sought the warrant to authenticate the Ring video depicting Defendant brandishing a firearm at a passing car, identify Defendant's cousin Tony, confirm that the phone found on Defendant's bed was in fact Defendant's phone, and establish that Defendant had possession of the iPhone “before, during and after the offense.” Notwithstanding, MPD was authorized under the warrant to search for “any and all” address books; contact lists; telephone numbers; telephone number lists; emails, picture messages, text messages, instant messages, and voicemails from any application on the phone; photographs; video recordings; encrypted, deleted, and unallocated files; and GPS, cellular tower, Bluetooth, and WiFi location data. Two of the categories, Nos. 6 and 11, permitted MPD to search for any and all “data” and metadata showing ownership, possession, and control over the phone. Law enforcement was also authorized to obtain the phone's passcode.
As a practical matter, the warrant authorized a search of the entire phone. See McCall, 84 F.4th at 1327-28 (“The warrant authorized a search of seven categories of data: the phone's registration information, its iCloud data (including all email content, photos, documents, contacts, and calendars), Find My iPhone data, communications records, iCloud backup history, Facetime communication logs, and iTunes account information. But those categories are so broad as to allow investigators to review practically all conceivable content on the cloud account. Thus, despite a putative limitation, the warrant required Apple to turn over the entirety of the account's information.”); see also Riley v. California, 573 U.S. 373, 393 (2014) (“The term ‘cell phone' is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”).
The warrant also authorized MPD to search for information not readily and logically related to the offense under investigation despite expressly referencing that offense. Specifically, Category Nos. 4, 5, and 7 each permitted law enforcement to search for information that could be used to identify other people who conspired with Defendant to commit the (non-conspiracy) offense of possession of a firearm by a juvenile delinquent, Fla. Stat. § 790.23. Category No. 5 further permitted law enforcement to seize communications related to the property stolen in the crime in addition to communications relating to the escape from the crime scene.
The warrant additionally contained no temporal limitations. In United States v. McCall, the Eleventh Circuit in 2023 expressed a preference for time-based limitations to particularize data-based search warrants. See McCall, 84 F.4th at 1328 (“Cloud or data-based warrants with a sufficiently tailored time-based limitation can undermine any claim that they are the ‘internet-era version of a general warrant.'” (quoting United States v. Blake, 868 F.3d 960, 974 (11th Cir. 2017)). Though McCall was decided roughly three years after the warrant here was issued, temporal limitations for ESI search warrants have been a concern since at least 2017. See Blake, 868 F.3d at 974 (holding that warrants issued to Facebook were overbroad, in part, because “the warrants should have requested data only from the period of time during which [the defendant] was suspected of taking part in the prostitution conspiracy”).
Nor was any search protocol described in the warrant. Though the Fourth Amendment does not require search protocols as a matter of course, see United States v. Sedlak, 697 Fed.Appx. 667, 668 (11th Cir. 2017) (“The fact that there was no specific search protocol limiting the time frame of searchable electronically stored information did not render the warrant overbroad.” (citing United States v. Khanani, 502 F.3d 1281, 1290-91 (11th Cir. 2007))); United States v. Bradley, 644 F.3d 1213, 1258 n.95 (11th Cir. 2011) (rejecting “outright” the claim “that the searches were unconstitutional because the agents failed to obtain pre-approval from the district court of a search protocol before conducting the searches.”), the absence of a protocol here, where the warrant in practice authorized a general search without temporal limitations, supports a finding that the state search warrant was overbroad.
In short, MPD was investigating a discrete offense-possession of a firearm by a juvenile delinquent-and sought to search Defendant's iPhone to authenticate a date-stamped doorbell camera video showing Defendant brandishing a firearm, identify Defendant's cousin, and establish that Defendant's phone belonged to Defendant. This was not a complex white-collar case requiring the assembly of a “paper puzzle” from a large number of innocuous pieces of evidence; the application of a “practical margin of flexibility,” Wuagneux, 683 F.2d at 1349, did not necessitate the overly broad warrant here that permitted a search of Defendant's entire phone without limitation.
Accordingly, I find that the search warrant is overbroad in violation of the Fourth Amendment.
B. The Good-Faith Exception
Having found the search warrant was unconstitutionally overbroad, the Court turns to the application of the good-faith exception.
Defendant's iPhone was searched pursuant to a warrant issued by a state court. “The Supreme Court's decision in Leon ‘stands for the principle that courts generally should not render inadmissible evidence obtained by police officers acting in reasonable reliance upon a search warrant that is ultimately found to be unsupported by probable cause.'” United States v. Robinson, 336 F.3d 1293, 1295-96 (11th Cir. 2003) (quoting United States v. Martin, 297 F.3d 1308, 1313 (11th Cir. 2002)). “The good faith exception may be applied to a search conducted pursuant to an overly broad warrant.” United States v. Travers, 233 F.3d 1327, 1330 (11th Cir. 2000) (citing United States v. Accardo, 749 F.2d 1477, 1481 (11th Cir. 1985)).
United States v. Leon, 468 U.S. 897 (1984).
The Supreme Court recognizes that “‘[i]n the ordinary case, an officer cannot be expected to question' a judge's decision that the requirements for a warrant have been satisfied or that the form of the warrant is sufficient.” McCall, 84 F.4th at 1323 (quoting Leon, 468 U.S. at 921). “Under this good faith exception to the exclusionary rule, suppression is necessary ‘only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.'” Robinson, 336 F.3d at 1296 (quoting Martin, 297 F.3d at 1313). But while a search pursuant to a warrant issued by a neutral magistrate will normally suffice to establish good faith, “it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Id. (quoting Leon, 468 U.S. at 922-23). There are four circumstances in which the good-faith exception does not apply:
(1) where the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) where the issuing magistrate wholly abandoned his judicial role; (3) where the affidavit supporting the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where, depending upon the circumstances of the particular case, a warrant is so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid.Id. (citing Martin, 297 F.3d at 1313). The Court may consider evidence outside the four corners of the affidavit in assessing whether the Government has satisfied its burden of showing good faith reliance. Id. at 1297.
The Government argues that none of the four circumstances above bar application of the good-faith exception in this case. Defendant asserts in his Reply that the good-faith exception does not apply because the warrant on its face was so facially deficient that Sgt. Weinger and later the FBI could not have reasonably presumed it to be valid (the fourth circumstance). Accordingly, only the fourth circumstance is at issue, and the Court must determine if the warrant was so facially deficient in particularizing the things to be seized that Sgt. Weinger could not have reasonably presumed it to be valid.
There has been no argument advanced that the state court that issued the warrant was misled or that the state court judge abandoned the judicial role (the first and second circumstances). Defendant also does not argue that Sgt. Weinger's affidavit was lacking in indicia of probable cause (the third circumstance). Indeed, the warrant affidavit set forth sufficient probable cause for a search of the iPhone.
Looking to the face of the warrant, the warrant was overbroad and contained no temporal limitations or search protocol. As explained above, the warrant authorized Sgt. Weinger to seize multiple categories of data that purport to reference matters not under investigation (e.g., conspiracy) or that do not readily relate to the crime under investigation (e.g., stolen property). Indeed, Sgt. Weinger testified that he used a template to draft the portions of the warrant that were not the probable cause section, explaining that he did so because he was concerned certain technological terms had to be in the warrant for the extraction. Sgt. Weinger later admitted on cross-examination that he used the same or similar template across warrants and that the warrant at issue here had not been tailored to this case. Government counsel asked Sgt. Weinger about each of the categories in the warrant in effort to elicit from him articulation and explanation for his inclusion of each of those categories; I do not credit his response, which contradicted his answer when he was not led that he did not modify the warrant template in any way. Moreover, if Sgt. Weinger had reviewed the template, he did not do so carefully enough to notice its inclusion of offenses not under investigation.
It is not this Court's suggestion that using templates is inappropriate.
Moreover, the Government's reliance on McCall to support good faith reliance, despite the lack of temporal limitations, is not justified here. In McCall, the Eleventh Circuit found good faith in part because the iCloud account at issue in that case stored data for only a two-and-a-half-month period at the time of the search, such that “[a]ny temporal limitation that satisfied the particularity requirement likely would have covered that amount of time.” McCall, 84 F.4th at 1328. By contrast, Defendant's phone stored approximately 6 months of data at the time of the search. Sgt. Weinger knew at the time of his search warrant affidavit that evidence sought in the warrant had a date-stamp for a single day, in early September 2020. Thus, any temporal limitation that would have satisfied the particularity requirement for the state search warrant would have overlapped with or covered less time than the 6 months of data stored on the phone. In addition, while Eleventh Circuit caselaw does not require that a warrant contain a search protocol, Agent Lavelle agreed on cross-examination that the Cellebrite software used to view the phone extraction permitted law enforcement to target the search of the extraction by date ranges; both Sgt. Weinger and Agent Lavelle testified that that functionality was not used here.
Sgt. Weinger testified that Defendant's phone came into use in July 2020 and that it was seized from Defendant's residence on November 19, 2020. Agent Lavelle testified that the Cellebrite report for the phone reflected some activity on the phone from March and April 2020 with the majority of the activity occurring later in 2020.
The Court recognizes that a prosecutor had reviewed the warrant before it was submitted to the judge. But Sgt. Weinger's testimony on this point, brief and providing minimal detail, is not sufficient to overcome use of an untailored template, lack of temporal limitations, and a warrant that in practice permitted a search of the entire phone for a relatively narrow investigative task.
Accordingly, the Court finds that the good-faith exception does not apply in this case.
Because I find that the good faith exception does not apply, law enforcement was not authorized to search the phone when they discovered evidence of fraud in plain view. I thus conclude that the plain view doctrine does not apply.
C. Inevitable Discovery Doctrine
The Court further finds that the inevitable discovery doctrine does not bar application of the exclusionary rule. The Government argues in its Response that the inevitable discovery doctrine applies in two respects: first because, as the Government asserts, “[i]t is more likely true than not that the government would have obtained a valid warrant to search Vernelus's phone for evidence of fraud,” (ECF No. 179 at 29); and second because a probation search of the home and phone would have led to the discovery of the evidence of fraud on Defendant's phone.
“[T]he inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source.” Utah v. Strieff, 579 U.S. 232, 238 (2016) (citing Nix v. Williams, 467 U.S. 431, 443-44 (1984)). The inevitable discovery doctrine requires the Government to prove that the evidence in question would ultimately have been discovered by lawful means and that those lawful means were being actively pursued at the time the defendant's rights were violated. United States v. Virden, 488 F.3d 1317, 1322 (11th Cir. 2007). “For the exception to apply, the prosecution need[s] to show that the police would have obtained the evidence ‘by virtue of ordinary investigations of evidence or leads already in their possession.'” Id. at 1323. “‘Active pursuit' does not require that police have already planned the particular search that would obtain the evidence.” United States v. Johnson, 777 F.3d 1270, 1274 (11th Cir. 2015), overruled on other grounds by United States v. Watkins, 10 F.4th 1179 (11th Cir. 2021) (en banc). The Government must satisfy its burden by a preponderance of the evidence. Watkins, 10 F.4th at 1182.
To the extent the Government's inevitable discovery theory in its Response travels on the argument that the FBI would have obtained a valid warrant for Defendant's phone based on leads the FBI was actively pursuing, the argument is not a clear fit for the inevitable discovery doctrine. As a starting matter, the facts in this case reflect that the FBI did obtain a warrant for Defendant's phone, albeit in November 2023 and on the day the Government filed its Response to the Motion to Suppress. Though the FBI opened an investigation into LHV in August 2020, the Government's inevitable discovery argument based on the FBI's leads and investigation relies on evidence and leads in large part obtained after issuance of the illegal search warrant for Defendant's phone in November 2020. See (ECF No. 179 at 26-29) (referencing the following leads in the FBI's possession: (i) interview of co-Defendant Cadet from February 2021; (ii) October and November 2020 messages in chat threads and other PII obtained from St. Luc's phone pursuant to a search warrant in September 2021; and (iii) social media photographs of Defendant from February 2023). Agent Lavelle testified on cross-examination that he could not recall what he knew in November 2020 when asked whether he had probable cause to believe at the time that any of LHV's members were involved in fraud. (ECF No. 241 at 155). Rather, he testified that he was still searching through Defendant's phone as late as September 2021, around the same time the state search warrant for St. Luc's phone issued-no testimony was advanced to show that probable cause for a search of St. Luc's phone was not based on evidence obtained from Defendant's phone.
The Government's Response describes evidence of access device fraud collected from independent sources, including from the cell phone of co-Defendant St. Luc and social media, to support its theory that this evidence would have led the Government to obtain a warrant of Defendant's phone. (ECF No. 179 at 26). While I reject the argument that the Government was actively pursuing a warrant of Defendant's phone based on this evidence for the reasons stated herein, I note that neither side addressed the admissibility of this independently sourced evidence regardless of the outcome of this Motion. Specifically, to the extent the Government collected evidence, including text messages and photographs shared in text messages or social media, from sources other than Defendant's phone, as a practical matter, its admissibility would not be impacted by the illegality of the search of Defendant's phone. The Government did not argue that the independent source doctrine excepted this evidence from the exclusionary rule, nor did it endeavor to identify what evidence seized from Defendant's phone may be admissible from independent sources.
Otherwise, the Court does not find that the Government has met its burden of establishing inevitable discovery based on a hypothetical state probation search because the Government cannot show active pursuit of lawful means that would have made discovery of the evidence inevitable, the second requirement. The Court credits Officer Warren's testimony that, if Sgt. Weinger had not told her MPD was seeking a search warrant, she would have put together a search of Defendant's residence and she would have taken Defendant's phone and looked through it. However, Officer Warren also testified that she had decided not to pursue the investigative leads made known to her. The evidence developed at the hearing suggested that Officer Warren's decision not to pursue a probation search of Defendant's residence was contemporaneous with Sgt. Weinger contacting Officer Warren, informing her of Defendant's association with firearms and potential fraud, and telling her that MPD would be seeking a warrant for the search of the residence. Moreover, evidence developed at the hearing suggested she did not review the October 9 email or speak to Defendant's probation officer until after she had spoken to Sgt. Weinger. Thus, at the time the overbroad search warrant was obtained on November 20, 2020, probation had reviewed the October 9 email, received information associating Defendant with firearms, and was present at but did not participate in the search of Defendant's residence on November 19 (where an AR-15 was found), but probation had affirmatively decided not to pursue those investigative leads. Cf. United States v. Bishop, 683 Fed.Appx. 899, 910 (11th Cir. 2017) (internal citations omitted) (“[T]he investigation into whether [the defendant's] use of the iPhone violated the terms of his probation is ‘the lawful means which made discovery inevitable.' And those means were being ‘actively pursued' because, as the district court found, [the probation officer] had authorized a warrantless search of [the defendant's] phone for evidence of a probation violation before the assumedly illegal conduct involving the search warrant.”).
The Court makes no finding regarding the lawfulness of a hypothetical probation search of Defendant's residence and phone based on these facts.
Moreover, while the inquiry is by its nature somewhat hypothetical, in this case it is merely speculative at best that Officer Warren could have even accessed Defendant's iPhone to search it. She conceded that she could not have searched the phone if it was locked and Defendant refused to give her the passcode without obtaining a warrant. In that respect, no evidence was advanced establishing that the phone was not passcode-protected or otherwise unlocked, and Sgt. Weinger's search warrant affidavit describes what he saw upon picking up the phone on November 19, 2020 as a “lock screen,” at least implying the phone was locked. The evidence developed is insufficient for the Court to conclude that discovery of the phone's contents, particularly the fraud evidence at issue here, was more likely than not inevitably going to be discovered under those circumstances. Thus, the Court finds the Government has not met its burden of showing inevitable discovery.
D. Independent Source Doctrine
Last, the Court turns to the independent source doctrine. “The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.” Nix, 467 U.S. at 443. Thus, the exception “allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source.” Utah v. Strieff, 579 U.S. 232, 238 (2016). “The ultimate question . . . is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue[.]” Murray v. United States, 487 U.S. 533, 542 (1988). The Supreme Court has explained that this is not the case where the “agents' decision to seek the warrant was prompted by what they had seen during the initial [unlawful search], or if information obtained during that [search] was presented to the Magistrate and affected [her] decision to issue the warrant.” Id. (footnote omitted).
Courts in the Eleventh Circuit apply a two-part analysis to determine whether evidence seized during the execution of a warrant was discovered independent of an initial illegal search:
The first step is to excise from the search warrant affidavit any information gained during the alleged illegal [search] and determine whether the remaining information supports a finding of probable cause. The second step is to determine whether the officer's decision to obtain a search warrant was “prompted by” what he observed during the illegal [search]. This is a question of fact.United States v. Barron-Soto, 820 F.3d 409, 415 (11th Cir. 2016) (internal citations omitted). “If the officer would have sought the warrant even without the preceding illegal search, the evidence seized under the warrant is admissible.” United States v. Bush, 727 F.3d 1308, 1316 (11th Cir. 2013) (citing United States v. Noriega, 676 F.3d 1252, 1261 (11th Cir. 2012)).
As noted above, law enforcement obtained a federal warrant authorizing a search of Defendant's phone on November 21, 2023, the day the Response to the Motion to Suppress was filed. The federal warrant affidavit disclosed the prior state search warrant to the reviewing magistrate judge. The federal warrant affidavit references in paragraph 12 that Sgt. Weinger had conducted a review of the extraction for Defendant's iPhone and observed pictures of firearms, other LHV members handling firearms, large stacks of cash, and pictures of jewelry. Paragraph 12 also disclosed that Sgt. Weinger had observed personal identifiable information in plain view.
As to the first step-excising information from the federal search warrant affidavit-the federal search warrant was still supported by probable cause. “A sufficient basis for probable cause for a search 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.” Barron-Soto, 820 F.3d at 416 (quoting United States v. Noriega, 676 F.3d 1252, 1261 (11th Cir. 2012)). “Fair probability” is determined by whether the facts and circumstances would lead a reasonably prudent person to believe the place to be searched contains evidence of a crime. Id. Here, Agent Lavelle's warrant affidavit notes that Defendant was a suspected member of the LHV gang. He also averred that co-Defendant Jovis St. Luc's phone was searched pursuant to a separate state search warrant issued on September 7, 2021. The search of St. Luc's phone yielded a group chat among members of LHV, including Defendant, in which Defendant sought out personal identifiable information from LHV members on two occasions, receiving personal identifiable information in response. The federal warrant affidavit also notes two social media posts where Defendant shared pictures of himself displaying large amounts of cash and jewelry and referencing slang names for the LHV gang. The warrant affidavit noted that Defendant had no reported income with the Florida Department of Revenue. There was thus a fair probability that evidence of conspiracy to commit access device fraud, possession of unauthorized access devices, and/or aggravated identity theft, would be found on Defendant's iPhone.
As to the second step, however, Agent Lavelle's testimony suggests that his decision to seek the federal warrant was prompted by the earlier overbroad state search warrant. Agent Lavelle testified that he sought the federal warrant, more than two-and-a-half years after the phone extraction was turned over to the FBI, as a result of the filing of the Motion to Suppress. Though he initially testified at the hearing that he would have applied for a warrant to search Defendant's phone based on his investigation into LHV if MPD and Sgt. Weinger had not done so, he conceded on cross-examination that he probably would not have applied for the federal warrant in November 2023 if Defendant had not moved to suppress. Indeed, Agent Lavelle was asked, “Had [defense counsel] never ever filed a motion to suppress, you wouldn't have gone back to get another warrant; right?” He answered, “Hypothetically, probably not.” (ECF No. 241 at 152:25-153:2). It is clear that the later federal warrant was prompted by the challenge to the legality of the earlier state warrant search. Moreover, Agent Lavelle testified that he was still searching through Defendant's phone as late as September 2021. This was around the same time the state search warrant issued for St. Luc's phone, which was a basis to establish probable cause for the federal warrant and through which the Government re-obtained some but perhaps not all of the evidence on Defendant's phone.
As noted above, supra n.9, at least some of the evidence obtained from the unlawful search of Defendant's phone had already and actually been made available to federal law enforcement via other sources by the time the federal warrant issued in November 2023. As noted earlier, consistent with his affidavit submitted in support of the November 2023 federal warrant, Agent Lavelle testified that there was already an ongoing investigation into LHV starting in August 2020 and that an investigation into an opposition gang had been opened in 2019. These investigations were opened before Sgt. Weinger observed the Ring video on November 2, 2020. Agent Lavelle's affidavit further reflects that two state search warrants had been obtained for phones belonging to other members of LHV: a state search warrant for co-Defendant Damian Woodard's phone was obtained on April 12, 2021, in addition to the warrant for co-Defendant Jovis St. Luc's phone obtained in September 2021 as described above. (ECF No. 179-2 at 9 ¶ 15 & n.3). Consistent with his later testimony that evidence of access device fraud was found among evidence of firearms on Defendant's phone, Agent Lavelle averred in his federal search warrant affidavit that St. Luc's phone contained group chat threads where Defendant requested personal identifiable information from the other chat thread participants. The Government did not endeavor to identify what evidence seized from Defendant's phone is identical to that seized from these independent sources, but it stands to reason that these are the same chat threads found on Defendant's phone, i.e., the same evidence stored elsewhere and obtained pursuant to a state search warrant not challenged here.
Thus, the independent source doctrine does not apply here because the federal warrant affiant conceded that his application for the purportedly independent federal search warrant was prompted by Defense counsel's challenge to the legality of the search and thus the admissibility of the evidence seized therein.
IV. RECOMMENDATIONS
Based on the foregoing, the undersigned respectfully RECOMMENDS that Defendant Jerry Vernelus's Motion to Suppress (ECF No. 157) should be GRANTED and all evidence obtained from Defendant's phone should be suppressed in violation of the Fourth Amendment.
The parties will have FOURTEEN (14) DAYS from the date of service of this Report and Recommendation within which to file written objections, if any, for consideration by the Honorable Darrin P. Gayles, United States District Judge for the Southern District of Florida. Pursuant to Federal Rule of Criminal Procedure 59(b), Eleventh Circuit Rule 3-1, and accompanying Internal Operating Procedure 3, the Parties are hereby notified that failure to object in accordance with 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions. See Thomas v. Arn, 474 U.S. 140 (1985).
RESPECTFULLY SUBMITTED.