Opinion
CR-21-01117-001-TUC-JAS (JR)
11-03-2022
United States of America, Plaintiff, v. Alexis Ivan Garcia, Defendant.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
On April 20, 2022, Defendant Alexis Ivan Garcia (“Defendant”) filed a Motion to Suppress. (Doc. 37). On May 18, 2022, the Government filed a response. (Doc. 43). Defendant did not file a reply. On September 20, 2022, an evidentiary hearing was conducted before the undersigned at which four Government witnesses and Defendant testified and five exhibits were admitted. (Doc. 49). Also on September 20, 2022, the Government filed an Uncontested Stipulation of Facts. (Doc. 50). At the conclusion of the evidentiary hearing, the Court ordered supplemental briefing to be submitted simultaneously on October 17, 2022. (TR 218).
On October 17, 2022, Defendant filed an unopposed Motion For Extension of Time to File Supplemental Briefing requesting that the deadline for the parties to submit their supplemental briefs be extended to October 24, 2022. (Doc. 58). The Court granted Defendants' unopposed motion. (Doc. 59). On October 24, 2022, the Government filed its supplemental brief. (Doc. 62). Defendant failed to file a supplemental brief. The plea deadline is December 30, 2022 and trial is set for January 18, 2023. (Doc. 55). This matter has been referred to Magistrate Judge Jacqueline Rateau for pretrial matters. As more fully set forth below, the Magistrate Judge recommends that the district court grant Defendant's Motion to Suppress.
I. Facts
a. Charges
On May 19, 2021, Defendant was indicted on one count of violating 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), Possession of Child Pornography. (Doc. 3).
The Stipulated Facts are taken from the Uncontested Stipulation of Facts. (Doc. 50).
On August 11, 2020, United States Border Patrol Agents (“BPAs”) arrested Defendant in Sonoita, Arizona for violating 8 U.S.C. § 1324. (Doc. 50 at 1). At the time of his arrest Defendant was in possession of an Apple iPhone 11 Pro Max (the “iPhone”) which was seized by the apprehending agents as evidence in the case. Id. At 8:23 p.m., Defendant granted BPAs consent in writing to examine the iPhone and provided his iPhone passcode. Id. At 8:26 p.m., BPAs began recording a video interview of Defendant. Id. Immediately upon commencement of the recorded interview, Defendant's iPhone rang, and BPAs told Defendant that he could call “her” back after the interview. Id. Immediately thereafter, at 8:27 p.m., on video, Defendant read and waived his Miranda rights in writing. (Doc. 50 at 1).
During his interview, Defendant admitted to BPAs that he used his iPhone during the smuggling attempt. (Doc. 50 at 2). In the middle of the interview, BPAs advised Defendant that they were seizing his iPhone. Id. BPAs told Defendant they were taking it as evidence and were going to get whatever information was relevant to the case off of it. Id. Immediately after BPAs seized Defendant's iPhone, BPAs placed the device in airplane mode to preserve its contents. Id. The iPhone was then placed in a transparent plastic evidence bag along with the consent to search form and a completed seizure form. Id. The iPhone was then turned over to the Seized Property Specialist at the Border Patrol Station. Id.
Defendant was booked for a violation of 8 U.S.C. § 1324 and released from the Sonoita Border Patrol Station. Id. Prosecution was deferred. Id. At the time Defendant was released from custody he was not provided with any documentation related to his arrest, the seizure of his property, or a copy of the consent to search form that he signed immediately prior to his interrogation. Id. Defendant's iPhone was maintained in U.S. Border Patrol custody with the Seized Property Specialist at the Sonoita Border Patrol Station. Id.
On September 23, 2020, U.S. Border Patrol personnel executed a form entitled Disposition Order that was mailed to Defendant's address. Id. That form instructed Defendant that his iPhone would be remitted to him and directed him to call within 30 days of the letter. Id. That form also indicated that the iPhone would be disposed of if Defendant did not call within 30 days. Id.
On December 16, 2020, U.S. Border Patrol's Digital Forensics Unit (“DFU”) took custody of Defendant's iPhone. (Doc. 50 at 2). On December 28, 2020, BPA Matthew K. Edmondson (“Agent Edmondson”) acquired a file system acquisition of Defendant's iPhone. Id. Agent Edmondson unlocked the iPhone using the passcode that Defendant provided on his signed consent form, loaded the file system acquisition into Cellebrite and started to review the data. (Doc. 50 at 2-3). While reviewing images on the device, he observed a picture of what appeared to be child sex abuse material. Id. at 3. Within Cellebrite, Agent Edmondson went to the directory on the iPhone's file system which contained multiple videos of what appeared to be child sex abuse material. Id. Agent Edmondson identified that the directory was tied to an application called KeepSafe, an application designed to secure storage of photos, documents, and applications for mobile devices. Id. Agent Edmundson stopped his examination and contacted the Tucson office of Homeland Security Investigations (“HSI”).
Cellebrite is a software that allows a user to extract the contents of a cellular telephone. (Doc. 50 at 3). Once extracted, the software produces a file. Id. The user can then view that file to determine whether the extraction was successful and unencrypted. Id. The complete file allows a user to ascertain the number of items of evidentiary value on the phone. Id. Id. Once the file has been generated and verified, the user can produce a report that they can transmit to other parties for review on a computer or tablet that does not have the Cellebrite software. Id. In producing such a report, a user of Cellebrite can pick and choose which contents of the phone to include in the report and can also restrict the information included in the report by relevant date range. Id.
On December 28, 2020, BPAs advised the U.S. Attorney's Office that Defendant's iPhone contained suspected child pornography. (Doc. 50 at 4). On December 29, 2020, the same agents advised the USAO that Tucson HSI Special Agent (“SA”) Winward Griffin would handle the child exploitation investigation. (Doc. 50 at 4). On January 7, 2021, SA Griffin obtained a federal search warrant to search Defendant's iPhone for evidence of child pornography violations set forth in 18 U.S.C. §§ 2252 and 2252A. Id. On January 12, 2021, SA Griffin executed the search warrant and obtained a copy of the extraction from Agent Edmondson. Id. Forensic examination of the extraction revealed 21 videos depicting suspected child sex abuse material. Id. Additional facts that were established at the evidentiary hearing relevant to the issue on review are discussed infra.
II. Defendant's Motion to Suppress
Defendant's Motion to Suppress seeks suppression of the iPhone's contents on the grounds that BPAs obtained Defendant's iPhone's passcode in violation of Miranda, Defendant withdrew his consent to the search of his iPhone, and that BPAs exceeded the scope of Defendant's consent to the search of his iPhone. (Doc. 37 at 5-15). This Court finds that the Government's supplemental brief, submitted after a full evidentiary hearing, accurately sets forth the issues on review: (a) whether Defendant voluntarily consented to a search of his iPhone; (b) whether the scope of the search exceeded Defendant's consent; (c) whether the seizure of the iPhone constituted an intervening act that prevented Defendant from withdrawing his consent; (d) whether Defendant withdrew his consent to the iPhone search; and (e) whether the inevitable discovery doctrine applies. (Doc. 62 at 1). These five issues are discussed sequentially below.
III. Law and Analysis
a. Voluntariness of Defendant's Consent to the Search of his iPhone
At the evidentiary hearing Defendant argued that he did not voluntarily consent to a search of his iPhone. (TR 19). Physical evidence obtained as a result of a custodial interrogation without Miranda warnings may be admissible. United States v. Mora-Alcaraz, 986 F.3d 1151, 1157 (9th Cir. 2021) (citing United States v. Patane, 542 U.S. 630 (2004)). “The proper analysis for the admissibility of evidence obtained as in violation of Miranda looks to all the circumstances, including: (1) whether defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told a search warrant could be obtained.” Mora-Alcaraz, 986 F.3d at 1157 (9th Cir. 2021) (citing United States v. Johnson, 875 F.3d 1265, 1276-77 (9th Cir. 2017); United States v. Patayan Soriano, 361 F.3d 494, 502 (9th Cir. 2004)).
The facts surrounding Defendant's disclosure of his iPhone passcode and the initial search of his iPhone during his August 11, 2020 interview are as follows:
Then BPA Nicholas Poole (“Officer Poole”) testified that at Defendant's interview two agents were present, himself and BPA Abraham Medina (“Agent Medina”). Both agents sat across a desk from Defendant in an interview room that has covered up windows. (TR 21, 31, 36-37). At 8:23 p.m., Defendant granted the agents consent in writing to examine the iPhone and provided his iPhone passcode. (Doc. 50 at 1). At 8:26 p.m., BPAs began video recording their interview of Defendant. (Doc. 50 at 1). Once the agents began video recording, they read Defendant his Miranda rights. (TR 41).
Nicholas Poole is currently a corrections officer the Eloy Detention Center. (TR at 21).
Officer Poole testified that his normal process for requesting consent to search a phone is to “ask for consent and fill out the form, go over the form together, invite the subject to read the form in its fullness, and then we fill out our respective sides.” (TR 30). Officer Poole provides the subject a synopsis of the consent form and tells them that they can read it. (TR 33). Officer Poole tells subjects that they have a right to say no, which is also stated on the form. Id.
According to Officer Poole, Defendant was not handcuffed and, although he was in custody, he was free to terminate the interview at any time. (TR 36-37). Officer Poole was not wearing his gun. (TR 37). Officer Poole considered Defendant to be compliant and that he did not pose a threat. Id. Defendant seemed nervous but, according to Officer Poole, this is a normal disposition for most people in Defendant's situation. (TR 37-38). Officer Poole considered Defendant cooperative because he was willing “to answer questions, give out specific information[.]” (TR 38). Officer Poole found Defendant to be truthful because he found that Defendant's story was corroborated by evidence on the iPhone. Id.
Agent Media witnessed Officer Poole present Defendant with the consent to search electronic devices form before Defendant was given his Miranda warnings. (TR 96-97). The consent to search form contains a field for a cellphone passcode or encryption code. (TR 97). Reading from Exhibit 4, Agent Medina testified that below the field for a passcode on the consent to search electronics form it states, in part, “I acknowledge my right to refuse consent to the search of my electronic device.” (TR 99; Ex. 4).
Agent Medina testified that when he requests consent to search a phone, he does not tell the subject that a search warrant could be obtained. (TR 100). Agent Medina testified that when presenting a subject with a consent form, he asks if they prefer to have the agent read the form to them, or if they prefer to read it themselves. (TR 99). According to Agent Medina's testimony, in obtaining a defendant's consent, a defendant is not told that a search warrant could be obtained nor is a defendant handcuffed. (TR 100-101). Defendant Garcia was not handcuffed. (TR 101). According to Agent Medina, it never seemed like Defendant had any reservations about providing his passcode. (TR 101-102). At one point in the interview, post-Miranda, Defendant willingly provided information, including regarding portions of his iPhone which the agents began to search in his presence. Id.
Agent Medina testified that if Defendant had hesitated in giving consent to search his iPhone, the agents would have put down “no consent” on the consent form. (TR 103). Agent Medina testified that Defendant did not object to the agents looking at his iPhone. (TR 105). According to Agent Medina, Defendant never withdrew his consent to providing his passcode nor did Defendant express any hesitation about the agents using his passcode or looking through his iPhone. (TR 105, 107). Prior to interview, Agent Medina would have gone through the standard practice for seizing a phone and after the interview, the iPhone would then be turned over to the seized property specialists. (TR 108).
Defendant testified on direct examination that he gave consent to the agents to search his iPhone, but that he initially felt “hesitant” to consent to the search of his iPhone. (TR 177). Defendant testified that he was hesitant to give his consent to having his iPhone searched claiming “they had told me that they were going to go through the phone while I was present.” (TR 177-178). On cross-examination, Defendant admitted the reason he was hesitant was actually because he was nervous, and as the interview progressed, he felt more relaxed and more comfortable. (TR 185). Defendant testified that the agents “seemed pretty friendly” and treated him with respect, and that he had been cooperative and helpful. (TR 185-186). Defendant admitted that no one threatened him or said that he must sit down and talk with them. (TR 186). Defendant agreed that he was given a choice about consenting to the search of his iPhone. (TR 187).
Defendant admitted to seeing the written consent form, signing it, and filling out the lower left part of the consent form. Id. Defendant also admitted that the agents read the form to him, that he was provided his Miranda warnings, was not forced to speak with agents, and that he continued to be cooperative and answer questions about his iPhone from the agents after he was provided his Miranda warnings. (TR 188-191). While Defendant testified to at times feeling intimidated, he also admitted he had been treated like a human being and was not bullied. (TR 195).
Although Defendant was in custody, Officer Poole, Agent Medina and Defendant all testified that neither BPA drew a gun. Officer Poole testified that he was not wearing his gun. Defendant provided his iPhone passcode immediately prior to being read his Miranda warnings and, after having been informed of his Miranda rights, Defendant continued to answer questions in his interview. Defendant was informed of his right not to be interviewed and, in fact, invoked his right to not answer certain questions during the interview. See TR 44-45, 51. Defendant was never threatened with being told a search warrant could be obtained. Defendant admitted that Officer Poole and Agent Medina treated him with respect during his interview.
In light of the foregoing, the Court finds that Defendant voluntarily disclosed his iPhone's passcode and voluntarily consented to the search of his iPhone.
b. The Scope of the iPhone Search
In his Motion to Suppress, Defendant argues that the search of his iPhone exceeded the scope of his consent. (Doc. 37 at 10-14). An individual's Fourth Amendment right to be free from an unreasonable search is violated when an officer exceeds the scope of the consent to search. See United States v. Lopez-Cruz, 730 F.3d 803, 809 (9th Cir. 2013) (“‘It is a violation of a suspect's Fourth Amendment rights for a consensual search to exceed the scope of the consent given.'” (quoting United States v. McWeeney, 454 F.3d 1030, 1034 (9th Cir. 2006)). See also Walter v. United States, 447 U.S. 649, 656 (1980) (“When an official search is properly authorized-whether by consent or by the issuance of a valid warrant-the scope of the search is limited by the terms of its authorization.”). “The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?” United States v. Rodriguez-Preciado, 399 F.3d 1118, 1131 (9th Cir.), amended, 416 F.3d 939 (9th Cir. 2005) (quoting United States v. Cannon, 29 F.3d 472, 477 (9th Cir. 1994)) (additional citation and internal quotations omitted).
As set forth above, this Court finds that Defendant voluntarily consented the search of his iPhone. Defendant's written consent to the search his iPhone was broad and not limited to any specific applications on the iPhone. (Ex. 4). Defendant's written consent form allowed for the search of “any and all information contained in or accessible from my electronic device.” Id. In light of this expansive language, the Government insists that “[t]he typical reasonable person would not have believed there was any restriction on the agents' review of photographs or anything else.” (Doc. 62 at 7-8).
On direct examination, Officer Poole testified that he has been involved in cases where a defendant gave a limited consent to search explaining:
A. When searching - - there's a lot of load drivers that are female load drivers and they do not want us looking at their photos because of - - there could be photos that are embarrassing to them or that are private to them and they don't want us looking at them. And we would - - we'd note that down on this form, the consent to search form, that only certain things - - for example, we'll start going through a list. Can we look at your maps? Yes. Can we look at your photos? No. Snapchat? I'd rather you not. So that's a no. Messages? Yes. So it depends. We'll go pretty detailed before I open up apps.
Q. And in this case with defendant Garcia, was any limited consent provided?
A. No.(TR 40-41). Officer Poole testified to the specific times that Defendant consented to the agents looking at specific areas of his iPhone. (TR 43-54). For example, Officer Poole testified to reading certain text messages on the iPhone during Defendant's interview. (TR 43-44, 48-52, 65-66, 70-71). Officer Poole testified to accessing maps, WhatsApp, and contacts during Defendant's interview. (TR 46-47, 54, 64-65, 68, 70-71). Officer Poole testified that there were certain questions that he posed to Defendant that Defendant chose not to answer. (TR 44-45, 51). Officer Poole did not recall viewing any photos on the iPhone during Defendant's interview. (TR 46). Officer Poole could have gone through the iPhone's photos during the interview but he did not because his part of the interview was limited and his questions were answered through use of the other applications. (TR 72-73). Officer Poole also testified that Defendant never revoked his consent while he (Officer Poole) was looking at the iPhone. (TR 49, 52). Officer Poole testified that Defendant never said “don't look at my phone,” “don't look at my texts messages,” or “don't look at my photographs.” (TR 54).
However, on cross-examination, Officer Poole testified:
Q. You told Mr. Garcia that you were going to get whatever information that is relevant to this case off of it [the iPhone], correct?
A. Correct.
Q. That's different from saying we're going to get everything off your phone, correct?
A. I would - - I would say yes.(TR 75). Defendant testified that he understood that the BPAs were only going to look through his iPhone while in his presence. (TR 178). Defendant testified that he understood that he gave permission for the agents to look at his iPhone's locations, maps, contacts and messages applications. (TR 178-179). He testified that the agents told him that they were going to get whatever information off the iPhone that was relevant to the case and that he understood that “they were going to go through contacts, you know, addresses, messages, just anything that kind of we went through together.” Id. Defendant testified: “Q. Did you think this meant that the agents were going to go look through the photos on your phone? A. No. I didn't.” Id. Defendant explained that the agents “didn't ever bring up photos or mentioning of anything of photos while we were together so I thought they - - there would be no necessity for them to go through photos.” (TR 180).
Officer Poole testified on redirect examination: “Q. And when you seize a phone from someone that you've gotten consent from, are you allowed to continue your investigation of their case and other cases related to their case at a later time? A. Yes, I believe it specifically states that in the consent form.” (TR 81). Also, Agent Medina testified that the consent to search electronics form states that “the device may be retained by DHS, including but not limited to, CBP and may be reviewed or analyzed after the devices are returned to me.” (TR 108). This testimony by Officer Poole and Agent Medina does not address the scope of Defendant's consent.
This Court finds that while the consent to search electronics form provides for an unlimited search of the iPhone, the issue comes down to whether the scope of Defendant's consent to search was limited by Officer Poole's representation to Defendant that agents were going to get “whatever information that is relevant to this case” off of the iPhone and the agents' conduct during Defendant's interview. While a close call, this Court finds that based on the agents' conduct and the representations made to Defendant, the scope of Defendant's consent to the search of his iPhone was limited to the iPhone applications accessed by the agents during Defendant's August 11, 2020 interview.
It is undisputed that at the time of Defendant's interview, the “case” that was being investigated was alien smuggling. (TR 71). Officer Poole admitted to telling Defendant in obtaining his consent that agents were going to get the information off the iPhone that is relevant to “this case.” Officer Poole also admitted that his statement is different than advising Defendant that agents were seeking consent to search the entirety of the data contained on his iPhone. The applications that were accessed during Defendant's interview were the iPhone's text messaging application, WhatsApp, call logs, contacts and maps. Neither Officer Poole nor Agent Medina testified to accessing the iPhone's photos during Defendant's interview.
Furthermore, BPA Alexander Pappadia (“Agent Pappadia”) testified that he reviewed Defendant's iPhone data in the course of his investigation of different case involving a target referred to as “Avila.” (TR 146). According to Agent Pappadia's testimony, Avila was an alien smuggling coordinator who was on pretrial release. (TR 149). Agent Pappadia testified that based upon his investigation and the information he received from Officer Poole and Agent Medina, Defendant was in contact with Avila through text messaging and WhatsApp. (TR 149, 156). Agent Pappadia testified to reviewing the iPhone's WhatsApp messages, text messages and call logs and that he “was just looking for something very specific and it was right there and it was easy to find.” (TR 149-150). Agent Pappadia denied looking at any pictures on the iPhone testifying that “often times there's evidence of alien smuggling in the[] photos and there's evidence of other crimes . . . However, I was only looking at [Defendant's] case because it was associated to another case that I was working.” (TR 153). Agent Pappadia explained:
I was looking for information that would associate the alien smuggling events to my target who was coordinating these alien smuggling events. So he was coordinating drivers, paying the drivers, and kind of coordinating the whole thing. I knew from the guys who interviewed Mr. Garcia that his case was possibly associated to my target so I reviewed the case.(TR 156). After finding what he needed from his search of Defendant's iPhone, Agent Pappadia sent the iPhone off for a forensic download because it is standard procedure to “send it off to our phone guys and they put it into a CD which is easily seen on a computer screen.” (TR 152). The CD will contain all the information that is on the phone. (TR 152-153).
In light of the forgoing, this Court finds that Defendant's consent to the search of his iPhone was limited to the iPhone applications that were accessed during his August 11, 2020 interview. Accordingly, the Court find that evidence obtained outside of the scope of Defendant's limited consent, including the 21 images found by Agent Edmonson, were found in violation of Defendant's Fourth Amendment right and must be suppressed.
c. Seizure of the iPhone as Precluding Withdrawal of Consent
Defendant argued at the evidentiary hearing that the seizure of his iPhone precluded him from withdrawing his consent to the search of his iPhone. (TR 214-215). “A seizure occurs when ‘there is some meaningful interference with an individual's possessory interests' in the property seized.” Marylandv. Macon, 472 U.S. 463, 469 (1985) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Law enforcement officers may seize a cell phone “to prevent destruction of evidence while seeking a warrant.” See Riley v. California, 573 U.S. 373, 388 (2014). If there is probable cause to believe [a container] contains contraband . . . [t]he item may be seized temporarily” while law enforcement officers seek a warrant to search it. Texas v. Brown, 460 U.S. 730, 749-50 (1983). See also, United States v. Cerna, No. CR 08-0730 WHA, 2009 WL 5125920 (N.D. Cal. 2009) (where a defendant revokes consent to search digital devices and asks for their return, the government properly retains seized items where probable cause exists to obtain a search warrant to search them).
Defendant's iPhone was discovered by BPAs during a search incident to Defendant's arrest and the agents seized it. Agent Medina testified that the iPhone had been seized prior to the beginning of Defendant's interview. (TR 105). This Court finds that it was constitutionally permissible for BPAs to seize the iPhone while they obtained a warrant to search its contents and that the seizure of the iPhone did not operate to preclude Defendant from withdrawing his consent to the search of the iPhone. ...
d. Withdrawal of Consent to iPhone Search
In his Motion to Suppress, Defendant argues that he withdrew his consent by attempting to remotely lock his iPhone and by calling U.S. Customs and Border Protection and asking for his iPhone back. (Doc. 37 at 10). Defendant insists that the Government's actions by placing his iPhone in a faraday bag “blunded (sic) the effectiveness of his first action [and] the [Government's failure to provide him a copy of the consent form thwarted his attempts to contact the most appropriate agent [to ask for the return of his iPhone].” Id. According to Defendant, “[i]t was the [G]overnment here that erected roadblocks to [Defendant] withdrawing his consent.” Id. He relies on United States v. Gray, 369 F.3d 1024 (8th Cir. 2004), United States v. Sanders, 424 F.3d 768 (8th Cir. 2005), United States v. $304,980.00 in U.S. Currency, 732 F.3d 812 (7th Cir. 2013), and United States v. Williams, 898 F.3d 323 (3d Cir. 2018).
The Ninth Circuit Court of Appeals has held that “[a] suspect is free, however, after initially giving consent, to limit or withdraw his or her consent at any time[.]” United States v. McWeeney, 454 F.3d at 1034 (citing Florida v. Jimeno, 500 U.S. 248, 252 (1991)). In Gray, the Eight Circuit Court of Appeals recognized that “[withdrawal of consent need not be effectuated through particular ‘magic words,' but an intent to withdraw consent must be made by unequivocal act or statement.” 369 F.3d at 1026 (citing United States v. Ross, 263 F.3d 844, 846 (8th Cir. 2004)). The court of appeals upheld the district court's finding that the defendant failed to specifically withdraw his consent to search where the defendant attempted to withdraw his consent by stating that the duration of the search was “ridiculous” and twice saying that he and another individual were “ready to go now.” Id.
In United States v. Sanders, the Eighth Circuit Court of Appeals found that the defendant unequivocally withdrew his consent to the search of his person where “at least five times [the defendant] moved his hand down and prevented [the officer] from searching his pockets.” 424 F.3d at 775. The appeals court held “[b]ecause this was a consensual search, [the defendant] had every right to withdraw or limit the scope of his consent by taking actions clearly designed to prevent [the officer] from searching further.” Id. The court held that the defendant's actions “made it apparent” that he did not “intend to permit [the officer] to search his pockets.” Id.
In United States v. $304,980.00 in U.S. Currency, the Seventh Circuit Court of Appeals held the defendant failed to unequivocally withdraw his consent to search where the defendant, when asked if he still consented to the search, “grabbed the consent form from [the officer], wrote something on it, and gave it back without saying a word.” 732 F.3d at 821. Although the defendant wrote the words, “under protest” on the consent form, the court of appeals held that under the circumstances, the defendant's actions “would have led an objective observer to believe that [the defendant] had signed the form and affirmed his consent.” Id. at 820-21.
In United States v. Williams, the Eight Circuit Court of Appeals found the defendant failed to withdraw his consent for officers to search his car where the defendant complained that he had been standing “out [there] half an hour” and after he told an officer “you searched my car three times [and] y'all got me on the side of this road in the middle of the winter holding me up and I got to go.” 898 F.3d at 331. The appellate court agreed with the district court's finding that the defendant's statements “constituted manifestations of irritation and not statements indicating that he was withdrawing the consent he had conferred. Id.
This Court finds that the cases relied upon by Defendant are factually distinguishable and unpersuasive. Gray, Williams, and $304,980.00 in U.S. Currency all involved unclear or equivocal conduct by a defendant that did not operate to withdraw the prior consent to search that was given in those cases. Sanders is the only case where the appellate court held that the defendant's conduct clearly communicated an intent to limit the scope of a consent search. However, as explained below, this Court finds that Defendant's conduct in this case is unlike the clear and unequivocal conduct of the defendant in Sanders.
Here, Defendant testified that when he called Border Patrol after his arrest, he sought the return of his iPhone and his car. (TR 207). Defendant testified:
Q. But what did you say in order to stop them from getting into your phone?
A. That I would like my phone back as well as my car - - as well as my car. Which to me meant like I didn't feel comfortable with them having my phone so like, if there was any steps I could do to get it back right away.(TR 207). Defendant's act of calling Border Patrol and asking for the return of his iPhone is not an unequivocal statement of withdraw of consent to search his iPhone. Defendant's request to have his iPhone and car returned to him is more like the conduct that occurred in United States v. Casellas-Toro, 807 F.3d 380, 391 (1st Cir. Dec. 7, 2015), relied upon by the Government. There, the defendant consented to a search of his car but the search did not occur for 21 days. During that interim period, the defendant repeatedly asked for the car back, but did not specifically withdraw his consent. The court of appeals held that held “a typical person would understand [the defendant's] calls as inquiries about when the search would be complete.” Id. The court held that while the defendant “asked for his car back, he never told the agents not to search it. He never said his previous consent was no longer valid.” Id.
Defendant also testified that he attempted to prevent the agents from searching his iPhone by locking his iPhone and insists that this was a clear revocation of his consent. (TR 204-205). This Court disagrees. “[A] a person who revokes consent to search must depend to some degree on the person about to conduct a search.” See United States v. Lee, No. CR 16-00453 SOM, 2016 WL 5853717, at *7 (D. Haw. Oct. 5, 2016), affd sub nom. United States v. Kapahu, 729 Fed.Appx. 600 (9th Cir. 2018). Defendant's act of attempting to lock his iPhone was not clear and unequivocal because Defendant's act of remotely locking his iPhone long after his interview had ended would never be communicated to the agents. By the time Defendant tried to remotely lock his iPhone, the iPhone was being stored and had already been rendered unable to transmit and receive signals.
Defendant's assertion that the Government prevented him from withdrawing his consent by rendering his phone unable to receive communications has little appeal. (Doc. 37 at 10). As cell phones can be remotely accessed and their data removed or altered, this Court has little reservation in concluding that the storage of the iPhone in a condition that would prevent the remote destruction or alteration of evidence was proper.
In sum, this Court finds that Defendant's call to Border Patrol asking for the return of his iPhone and car and his attempt to remotely lock his iPhone are not clear and unequivocal acts of revocation of consent.
...
e. Inevitable Discovery Doctrine
The Government argues that if any evidence from the iPhone was obtained in violation of Defendant's Fourth Amendment right the inevitable discovery doctrine to save its admissibility. (Doc. 62 at 11-12). “The inevitable discovery doctrine acts as an exception to the exclusionary rule, however, and permits the admission of otherwise excluded evidence ‘if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police . . .'” United States v. Reilly, 224 F.3d 986, 994 (9th Cir. 2000) (quoting Nix v. Williams, 467 U.S. 431, 447 (1984)). “[T]he government can meet its burden by showing that the evidence would have been uncovered by officers in carrying out routine procedures.” Reilly, 224 F.3d at 994 (citing United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989)). “The government must make this showing by a preponderance of the evidence.” Reilly, 224 F.3d at 994 (citing Nix, 467 U.S. at 444).
The inevitable discovery doctrine does not apply “so as to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant.” Reilly, 224 F.3d at 995 (quoting United States v. Mejia, 69 F.3d 309, 320 (9th Cir. 1995). Rather, it applies “only when the fact that makes discovery inevitable is born of circumstances other than those brought to light by the illegal search itself.” Reilly, 224 F.3d at 995 (citing United States v. Boatwright, 822 F.2d 862, 864-65 (9th Cir. 1987). See also United States v. Monreal-Rodriguez, 4:18-CR-1905-TUC-JAS (JR), 2022 WL 2442238, at *16-17 (D. Ariz. Jan, 3, 2022), report and recommendation adopted, 2022 WL 1957634 (D. Ariz. June 6, 2022) (finding inevitable discovery doctrine did not apply where search of phones was undertaken without a valid warrant).
The Government argues that in December of 2020, when the U.S. Attorney's Office learned Defendant's iPhone had been seized, it was interested in searching the iPhone for evidence of alien smuggling. (Doc. 62 at 12). The Government continues that if Defendant had refused to consent to having his iPhone searched, the U.S. Attorney's Office would have obtained a search warrant based on the probable cause developed from the BPAs' interview of Defendant on August 11, 2020. The Government insists, however, that since Defendant had cooperated in the interview, probable cause to obtain a search warrant for his iPhone was established and “the contraband on the [iP]hone would have been inevitably discovered during the search for alien smuggling pursuant to a search warrant.” Id.
The problem with the Government's argument is that the Ninth Circuit Court of Appeals has expressly rejected the application of the inevitable discovery doctrine in circumstances “to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant.” Reilly, 224 F.3d at 995. Yet, this is exactly what the Government asks the district court to do-apply the inevitable discovery doctrine to sanction its failure to obtain a search warrant where probable cause existed but the Government simply failed to obtain a warrant to search the iPhone.
Because application of the inevitable discovery doctrine is precluded in the circumstances presented here, this Court rejects the Government's argument that the doctrine operates to save the unlawful search of Defendant's iPhone.
IV. Recommendation
In sum, this Court finds that: (a) Defendant voluntarily consented to the search of his iPhone; (b) the scope of Defendant's consent was limited to the iPhone applications accessed during Defendant's interview; (c) the seizure of the iPhone did not preclude Defendant from withdrawing his consent; (d) Defendant failed to clearly and unequivocally withdraw his consent; and (e) the inevitable discovery doctrine does not apply. Accordingly, based on the foregoing and pursuant to 28 U.S.C. § 636(b) and Local Rule Civil 72.1, Rules of Practice of the United States District Court, District of Arizona, the Magistrate Judge recommends that the district court, after an independent review of the record, grant Defendant's Motion to Suppress (Doc. 37).
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This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No replies are permitted without leave of court. If any objections are filed, this action should be designated case number: CR 21-1117-TUC-JAS. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).