After he was charged with violating 18 U.S. Code § 1951(a)
(the Hobbs Act) and 18 U.S. Code § 924(c)(1)(A)(i), Woodrow Rudolph Dixon, Jr.
filed a motion to suppress certain evidence, as I explain below. U.S. v. Dixon, 2013 WL 6055396 (U.S.District Court for the Northern District of Georgia 2013).
Section 1951(a) makes it a federal crime to
obstruct, delay or affect commerce by “robbery or extortion” or by committing
or threatening physical violence against “any person or property”. Section 924(c)(1)(A)(i) makes it a federal
crime to use or carry a firearm “during and in relation to any crime of
violence or drug trafficking crime”.
The only information I can find about how the case arose is
in this opinion, and all it says is at the evidentiary hearing on the motion to
suppress,
[Federal] Agent Spence Burnett
testified that [Dixon] was arrested on an arrest warrant issued on the basis of
a complaint charging him with conspiracy to rob an individual he believed was a
drug trafficker and with possession of firearms in relation to the conspiracy. .
. .
Burnett confirmed [Dixon] was arrested
as he exited a building and was handcuffed and secured at that time. . . .
Burnett also testified that before the arrest he was aware of information
indicating [Dixon] had used telephones in connection with the commission of the
offense for which he was being arrested.
U.S. v. Dixon, supra.
Dixon moved to suppress “any evidence obtained from the
search of his Samsung cell phone by an agent with the Bureau of Alcohol, Tobacco,and Firearms (`BATF’) conducted after it was seized from him at the time of his
arrest”. U.S. v. Dixon, supra. According to the opinion, this is how the
search came about and what it involved:
[T]he only phone at issue is the
Samsung cell phone [Dixon] had open in his hand and was using when he was
arrested. . . . [It] is a Samsung Galaxy `smart-phone’ with an Android
operating system. . . . Agent Daniel Arrugueta with BATF testified that he was
present when [Dixon] was arrested and that he was the agent who seized the
phone. . . .
[Dixon] had exited a nearby building
and was starting to get into his car when he was arrested. . . . He was ordered
to put his hands on the car. . . . The phone . . . was taken from him and put
on top of the car. . . . Arrugueta seized the phone off of the car roof and
took the phone back to his office. . . .
Arrugueta testified that when he got back to his
offices he extracted the data from [Dixon’s] cell phone, from the phone itself
and from the micro `SD Card,’ a storage media in the phone. . . . He is trained
in extracting evidence as a `Computer Examiner.’ . . . He used a device called
`Cellebrite’ which plugs into the phone to extract data from the phone. . . .
While he was performing his extractions, Arrugueta called
Agent Spence to be sure the process of booking [Dixon], which was being done at
a different location, was still ongoing so that his search would be `within the
parameters of the incident to arrest.’ . . . He was advised [Dixon] was still
being booked. . . . He burned CDs of the information he extracted from the
phone. . . .
Arrugueta had no concern that the
device was dangerous. . . . But he also allowed as how there is always concern
that data might disappear by virtue of a `remote wipe.’ . . . Therefore, the
first thing Arrugueta would do would be to turn the phone off and take out the
battery. . . . These actions eliminate the possibility that the phone could be
wiped remotely. . . .
Arrugueta did not do a `full dump’ on
the phone because that process can take hours and likely would extend beyond
arrest and booking. . . . He would usually get a warrant if a `full dump’ were
needed. . . . But he did extract data from the SD card, a form of storage
media, which took about thirty minutes. . . . Arrugueta considered the cell
phone to be a `container’ that he could go through as long as it was done while
the booking process was still ongoing. . . .
U.S. v. Dixon, supra. The
reference to the agent’s assuming the phone was a “container” indicates he thought
it was an item he could search without obtaining a search warrant under the
search incident exception to the 4th Amendment’s default requirement
that officers have a warrant to search someone’s property.
In his motion to suppress, Dixon argued that the warrantless
search of his phone
cannot be sustained in light of the
Supreme Court's recent decision in Arizona v. Gant, 556 U.S.332 (2009). . . . He submits that neither officer security nor evidence
preservation -- the dual justifications for searches incident to arrest -- apply
to validate the search of Defendant's cell phone and the extraction of its
data. . . .
U.S. v. Dixon, supra. In U.S. v. Robinson, 414 U.S. 218 (1973),
the Supreme Court held that when an officer arrests someone, he can search the
arrestee and anything he/she is carrying for either or both of two
reasons: to disarm the suspect and/or to
find and take possession of any evidence the person is carrying to prevent it
from being destroyed.
The prosecution argued, in response, that the search of the
cell phone fell within the
well-established exception to the
warrant requirement permitting searches and seizures from persons incident to
their arrest. . . . The government argues that this exception encompasses the
right to search any closed containers, including a cell phone taken from the
arrestee's person, and Arizona v. Gant does not limit this
well-established exception. . .
. The government alludes to the risk the phone could be remotely locked
or its data remotely deleted, implicating the need to preserve evidence. . . .
U.S. v. Dixon, supra.
The judge began her analysis of the arguments by noting that
the issue presented in
is whether the search of [Dixon’s] cell
phone . . . was authorized under . . . the `search incident to arrest’ exception
to the warrant requirement. The government relies upon this `long-standing’
exception to the warrant requirement permitting not only the seizure of items
from the arrestee's person but the search of any container, to include
cigarette packs and cell phones, found on the arrestee as well, even when made
after the actual arrest back at the agents' offices.
The government cites U.S. v.
Robinson, supra (upholding
search of closed cigarette package on arrestee's person); U.S. v.Edwards, 415 U.S. 800 (1974) (warrantless search and seizure of
Defendant's clothing ten hours after arrest upheld where search of clothing
could have been made `on the spot’); U.S. v. Finley, 477 F.3d
250 (U.S. Court of Appeals for the 5th Circuit 2007) (upholding search
of cell phone incident to arrest); and U.S. v. Flores–Lopez, 670
F.3d 803, 810 (U.S. Court of Appeals for the 7th Circuit 2012) (upholding
search incident to arrest of cell phone for its phone number but questioning
whether more invasive search would be permissible).
U.S. v. Dixon, supra.
As noted above, Dixon relied on the Supreme Court’s decision
in Arizona v. Gant, supra,
as having changed the calculus used to
determine the applicability of this exception to seizure of cell phones. [He]
also highlights recent authority in the wake of Gant that
limits the warrantless search of cell phone data seized incident to
arrest. See U.S. v. Wurie, 2013 WL 2129119 (U.S. Court of Appeals for the 1st Circuit 2013) (`the
search-incident-to-arrest exception does not authorize the warrantless search
of data on a cell phone seized from an arrestee's person, because the
government has not convinced us such a search is ever necessary to protect
arresting officers or preserve destructible evidence’); Smallwood v. State, 113
So.3d 724 (Florida Supreme Court 2013) (`while law enforcement officers
properly separated and assumed possession of a cell phone from Smallwood's
person during the search incident to arrest, a warrant was required before the
information, data, and content of the cell phone could be accessed and searched
by law enforcement.’).
U.S. v. Dixon, supra.
The judge then began her analysis of the issue, noting that
if “if Robinson and its progeny were the governing authority
applicable in this case, it would not be difficult to conclude that the search
in this case should be sustained, so long as it was considered to be incident
to [Dixon’s] arrest.” U.S. v. Dixon, supra. She noted, though, that several factors
make this case more
difficult. For one thing, this case involves the extraction and seizure of data
and private information from a cell phone.
A second factor is that the search
of the cell phone, while roughly contemporaneous with [Dixon’s] arrest,
booking, and interview, was conducted at the agents' offices, outside of [his]
presence, after [he] had been taken into custody and removed to another
location for booking and interview, and involved much more than just a limited
search for the phone's log history or recent calls.
Superimposed upon these
factors is the fact that Arizona v. Gant was decided in April
of 2009 and casts the prior legal authority in a different light.
U.S. v. Dixon, supra. As to Gant,
she explained that in its opinion, the Supreme Court made it clear that in
applying the search incident to arrest exception, it intends to enforce the two
original justifications for it, i.e., to disarm the suspect and/or find evidence.
She then took up the issues in the case, pointing out that
Dixon was not challenging the
seizure of the phone; instead, he
challenges the search of the phone that was conducted after the arrest, away
from the scene of the arrest, outside of [his] presence at the agent's office,
where the agent plugged a device into the phone and extracted the data from the
phone itself and from its `SD card.’ . . .
Recently, at least one circuit court
and one state supreme court have addressed similar situations involving
seizures and searches of cell phones and have concluded . . . that such a
search violates the 4th Amendment. See U.S. v. Wurie, supra; Smallwood
v. State, supra.
U.S. v. Dixon, supra.
The judge found that Arrugueta lawfully seized Dixon’s phone
under the search incident exception, but
went beyond merely seizing the phone,
examining it to ascertain that it was not a weapon, and preserving it. He took
it back to his office and extracted all the data he could extract using a data
extraction device. This intrusion was more than minimal.
U.S. v. Dixon, supra.
She therefore found that this was not a case in which there
was
any threat that the arrestee might use
the cell phone as a weapon, in view of the fact that the phone had been
immediately seized from him, and, secondly, because it was immediately
ascertained that it was not a weapon. Nor is this a case where there was any
viable threat that the phone data could be remotely wiped or destroyed.
Once
the officer had possession of the phone it could be immediately shut off or put
in `airplane mode’ and/or its battery removed, effectively eliminating any
possibility of such a remote intrusion pending examination of the phone in a
controlled environment. . . .
There would have been ample time, in other words,
for the agents to obtain a warrant, properly limited in scope, assuming the
officers had probable cause to justify the search.
Furthermore,
the privacy interests an individual has in his or her cell phone, given the
nature of such phones today, distinguishes it from an individual's wallet, . .
. which may be examined immediately upon arrest to confirm identity, among
other things, or a briefcase, which may contain a weapon, or other dangerous
instrumentality, or destructible evidence.
Modern cell phones, like [Dixon’s]
Samsung, are in effect mini-computers, and contain contacts, text messages,
photographs, calendars, notes and memos, instant messages, voice memos, and
e-mail messages—a wealth of private information held within a small digital
`container,’ as it were, but a different kind of container from a crumpled
cigarette package or even a footlocker.
As opposed to a footlocker, or a cigarette
pack, which are capable of holding other objects, a cell phone is an integrated
digital device that holds only data and digitally stored information.
U.S. v. Dixon, supra.
She also found that requiring
a warrant in these circumstances before
such a search may be conducted does not impair the legitimate interests of the
government in ensuring the safety of the arresting officers and the
preservation of any evidence. These interests were fully protected in this case
by immediately taking the phone from [Dixon’s] hands incident to his arrest and
securing it.
At the same time, by requiring a
warrant in this situation for the search of the phone, the legitimate privacy
interests of the arrestee can be protected, while still permitting the phone to
be immediately seized and preserved pending further action.
U.S. v. Dixon, supra.
Because the judge found Arrugueta violated Dixon’s 4th
Amendment rights “when he took Defendant's cell phone back to his office and
searched, downloaded, and extracted all the data he could from it and its
storage media”, she granted Dixon’s motion to suppress. U.S. v. Dixon, supra.
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