Wednesday, January 30, 2013

Impersonating a Federal Officer, the Laptop and the 4th Amendment

After being charged with detaining a person while impersonating a federal officer in violation of 18 U.S. Code § 913, producing a fraudulent identification document in violation of 18 U.S. Code § 1028(a)(1) and possessing a fraudulent identification document in violation of 18 U.S.Code § 1028(a)(6), Eric Marques Devlin–Bell, Jr. moved “to suppress all evidence taken from the laptop” found in his car on April 12. U.S. v. Bell, 2013 WL 194200 (U.S.District Court for the Eastern District of Pennsylvania 2013).  

The case began on April 6, 2012, when Cain Township Police Department Sergeant

Chris Sambuco stopped a dark blue Ford Crown Victoria driven by Bell for failure to use a turn signal. . . . Bell's car had tinted windows, three antenna mounts, and two LED suction cup police-style warning lights adhered to the back window. A female was in the front passenger seat. Upon approaching the driver side door, Sambuco noticed Bell was wearing a nylon police belt with pouches and carrying a handgun. Sambuco also heard a cellular phone in the car scanning the Chester County Police radio.

Sambuco directed Bell to place both hands on the steering wheel and asked for his driver's license, vehicleregistration and proof of insurance. Bell produced the registration, proof of insurance, and a Pennsylvania identification card. Sambuco walked back to his patrol car to verify the information, and learned Bell's Pennsylvania driver's license was suspended, but his insurance and registration were in proper order.

U.S. v. Bell, supra.

Sambuco went back to the car and “invited” Bell to speak with him outside the passenger’s hearing.  U.S. v. Bell, supra. They walked to the rear of Bell’s car, where Sambuco told Bell he was going to issue him several citations (one of which apparently involved “his car’s window tint”).  U.S. v. Bell, supra. After telling Bell he could not drive the car because his license was suspended, Sambuco left Bell in the parking lot where the encounter took place.  U.S. v. Bell, supra.

On April 10, 2012, Tredyffrin Township Police Department Detective Todd Bereda began investigating an encounter involving Michael Boykins, whose car was disabled, and “a man wearing security gear, police related regalia, and a badge, and driving a dark blue Ford Crown Victoria outlined with lights and whip antennas”. U.S. v. Bell, supra. Boykins later identified the man as Bell.  U.S. v. Bell, supra. Bereda learned about that and also learned about Sambuco's encounter with him. U.S. v. Bell, supra. And he found out Bell’s driver's license was suspended until 2015.  U.S. v. Bell, supra.

On April 12, Bereda met with Sambuco and Chester County Detective Matthew Gordon to set up a consensual encounter with Bell to discuss the encounter between Bell and Boykins. U.S. v. Bell, supra.  Among other things, they “partially filled out” a Waiver of Rights and Consent to Search form to use during the encounter. It authorized a search of Bell’s Crown Victoria and the seizure of “any police lights and any police and/or law enforcement style identifications.”  U.S. v. Bell, supra.

Bereda and Sambuco then used a marked Caln Township Police patrol car to drive to Bell's last known address. U.S. v. Bell, supra. As they drove, “they saw Bell driving the dark blue Crown Victoria”.  U.S. v. Bell, supra. Sambuco turned the emergency lights on, signaling Bell to stop. U.S. v. Bell, supra. Bell pulled into a parking lot; the stop began at approximately 6:00 p.m. U.S. v. Bell, supra.

Sambuco pulled into the lot and parked 10 to 20 feet behind Bell's car. U.S. v. Bell, supra. He got out, approached the driver's side of Bell's car and asked for his driver's license, vehicle registration and insurance card. U.S. v. Bell, supra. Sambuco saw Bell's firearm in a holster on the front passenger seat. U.S. v. Bell, supra. Bell gave Sambuco his registration, insurance card and Pennsylvania identification card. U.S. v. Bell, supra.

After Bell gave him his identification and documents, Sambuco removed the ammunition from Bell's firearm and put it and the ammunition “in separate locations in the car for safety.” U.S. v. Bell, supra. At Sambuco's request, Bell got out of the car and walked with Sambuco to the rear of his car. U.S. v. Bell, supra. Sambuco t handed Bell's documents Det. Bereda, who began talking to Bell. U.S. v. Bell, supra. 

Sambuco then told Bell that while they could issue a citation for driving with a suspended license, they had decided not to do so; Bereda gave Bell his documents and told him he was free to leave.  U.S. v. Bell, supra. Bereda started walking back to the patrol car, but stopped and asked Bell if he would talk about the encounter with Boykins.  U.S. v. Bell, supra.  After they had chatted for about an hour, standing near Bell’s vehicle, Bereda asked Bell if he would consent to a search of his car, handing Bell the consent to search form the officers had partially filled out earlier.  U.S. v. Bell, supra.

After Bell signed the form, the officers searched his car and seized these items:

i. One silver security officer's badge attached to a chain;

iii. One `U.S. Enforcement Officer’ identification card depicting Bell's photograph; and

iv. One laptop computer.

U.S. v. Bell, supra.

Bell was “cooperative and congenial” until they found the laptop. U.S. v. Bell, supra. The officers were “suspicious” of the checks because “title” was misspelled and the phone number on them “was disconnected.”  U.S. v. Bell, supra.  When Bereda said he thought they were counterfeit, Bell said “a copy of one of the checks was on the computer,” and offered to show them. U.S. v. Bell, supra.  When he turned on the laptop, the officers “saw the emblem of the Federal Bureau of Investigations on the screen.” U.S. v. Bell, supra.  Because Gordon thought Bell might delete what was on the laptop, he did not ask for consent to search it, “but rather stopped talking to Bell, effectively ending the consent search.” Det. Gordon then seized the laptop and left. U.S. v. Bell, supra. The other officers left a few minutes later.  U.S. v. Bell, supra.

On April 13, Gordon got a warrant to search the laptop “for evidence of forgery.”  U.S. v. Bell, supra. On June 5, a U.S. Magistrate Judge issued a warrant authorizing a search of the laptop for evidence of the “federal crimes of impersonating a federal officer, producing and/or possessing a fraudulent identification document, mail fraud, and wire fraud.” U.S. v. Bell, supra.  The laptop was searched on July 27, 2012 and the search apparently produced evidence that led to the federal charges.  U.S. v. Bell, supra.

In moving to suppress, Bell claimed the search of his laptop violated the 4th AmendmentU.S. v. Bell, supra. He conceded that the traffic stop did not violate the 4th Amendment because Bereda and Sambuco knew he was driving without a driver’s license, which allowed them to “seize” Bell by stopping him to issue a citation for the violation.  U.S. v. Bell, supra. (The 4th Amendment creates a right to be free from “unreasonable” searches and seizures; a “seizure” of person involves law enforcement officers’ interfering with a person’s freedom of movement, such as stopping Bell and detaining him while they checked out the violation.)

The U.S. District Court judge who has the case disagreed, finding that the seizure of

Bell terminated when, within five minutes of the initiation of the stop, Bereda returned Bell's insurance card, registration, and identification; told Bell he was not citing him for driving with a suspended license; informed Bell he was free to leave; and began walking back to his patrol car. The subsequent conversation about the April 9 incident between Bell and Bereda was entirely consensual.

U.S. v. Bell, supra.

By consenting to an encounter with police, a person waives, or gives up, his or her 4th Amendment rights.  So, since Bell could have left but did not, he was not “seized” by the officers, so the encounter raised no 4th Amendment issue.  The judge also found that Bell consented to the search of his car, which meant that, as noted above, he waived his 4th Amendment rights with regard to the search.  U.S. v. Bell, supra.

Finally, Bell argued that the evidence found on the laptop “must be suppressed because the Government detained it for an unreasonable amount of time in violation of his 4th Amendment rights.”  U.S. v. Bell, supra. As noted above, it was seized on April 12 but the federal search was not conducted until July 27.  U.S. v. Bell, supra.

In addressing this argument, the judge noted that a “‘seizure lawful at its inception can nevertheless violate the 4th Amendment if its manner of execution unreasonably infringes possessory interests protected by the 4th Amendment's prohibition on unreasonable seizures.’“ U.S. v. Bell, supra (quoting U.S. v.Jacobsen, 466 U.S. 109 (1984)). Bell argued that the interference with his 4th Amendment interests in his

computer is particularly intrusive because computers are commonly used to store highly personal information. . . . his new business venture. This argument . . . is somewhat undermined by the fact that after the computer was seized, Bell never asked for it to be returned. . . . The fact Bell protested the seizure of his laptop adds little to the balancing because he nevertheless has not asked for its return.

U.S. v. Bell, supra.

The judge also found it was “significant” that a warrant to search Bell’s computer was

obtained the day after it was seized. `The longer the police take to seek a warrant, the greater the infringement on the person's possessory interest will be, [because] a greater infringement on possession than a shorter one.’ U.S. v. Burgard, 675 F.3d 1029 (U.S. Court of Appeals for the 7th Circuit 2012). In U.S. v. Mitchell, 565 F.3d 1347 (U.S. Court of Appeals for the 11th Circuit 2009), . . . the Government waited 21 days before applying for a warrant, an amount of time which the court found was unreasonable. . . As noted in Mitchell, one of the purposes of obtaining a search warrant promptly after an item is seized is to ensure the item is promptly returned should the search reveal no incriminating evidence. 

Here, within one day of the seizure, a Chester County magisterial district judge determined probable cause existed that the computer contained evidence of a crime and issued a search warrant. . . . Bell admitted during the April 12 encounter and in a call with Bereda soon after the encounter that the computer contained evidence concerning fraudulent checks. Thus, the likelihood that Bell's computer would not be returned to him significantly mitigates the intrusion upon his 4th Amendment interests. 

U.S. v. Bell, supra.

Bell also claimed the delay in obtaining the federal search warrant was objectionable, but the judge found it was not “unreasonable” in violation of the 4th Amendment because

federal investigators did not begin their investigation of Bell until April 13, the same day the state warrant was issued. Accordingly, some delay in obtaining the federal warrant was necessary to allow federal investigators an opportunity to determine (a) whether a federal crime had been committed, and (b) whether Bell's computer contained evidence of those federal crimes. Meanwhile, Bell's interest in the property remained relatively weak because he admitted the computer contained evidence he had forged checks, a possible state and federal crime.  Moreover, in investigating Bell's commission of federal crimes, the federal investigators relied heavily on cooperation from Chester County and Tredyffrin Township law enforcement agencies. There is an obvious public and government interest in promoting local and federal cooperation on criminal investigations.

U.S. v. Bell, supra.

Finally, the judge found there was no reason to believe “probable cause to search Bell's computer dissipated after the [state] warrant was issued” because “the computer remained in the custody of the Chester County Detectives Office and then federal law enforcement officers.”  U.S. v. Bell, supra.  He therefore denied Bell’s motion to suppress.  U.S. v. Bell, supra.

If you would like to read more about the facts in this case, check out the news story you can find here

No comments: