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United States of America v. Joshua Burgard

February 2, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
JOSHUA BURGARD,
DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge:

ORDER

I. Introduction

Before the Court is defendant Joshua Burgard's Motion to Suppress Defendant's Cell Phone and All Fruits of this Evidence, and Memorandum in Support (Doc. 22). The Government filed its response and memorandum (Docs. 23 & 24), and a hearing was conducted on January 4, 2011 (Doc. 30; Mot. Hr'g). The Motion to Suppress raised the issue of whether a delay of six days between the seizure of Defendant's cell phone based on probable cause and securing a search warrant for the phone constitutes an unreasonable seizure under the Fourth Amendment.

Having taken into consideration the arguments made by both sides, the Court finds that the seizure was not unreasonable. Defendant had disclosed the contents of the phone to a third party, and the law-enforcement officers were diligent in securing the warrant. The Court also finds that the officers relied in good faith on the warrant issued by the magistrate. Thus Defendant's Motion to Suppress (Doc. 22) is DENIED.

II. Background

Defendant was indicted on two counts of knowingly receiving and attempting to receive, between December 1, 2009, and January 30, 2010, visual depictions of minors engaging in sexually explicit conduct (Doc. 1). See 18 U.S.C. § 2252(a)(2), (b)(1). Defendant moves to suppress the cell-phone evidence recovered by law-enforcement officers, arguing that the officers did not have Defendant's consent to search the phone, the six-day delay before the officers secured a warrant substantially intruded on Defendant's Fourth Amendment interests, and the seizure of the cell phone exceeded the limited purpose of a Terry stop. As to the first argument, the Government concedes there was no consent (Doc. 24, p. 7). And as to the third, Defendant concedes the existence of probable cause, taking the seizure beyond a Terry stop (Mot. Hr'g). Thus only the second argument is at issue.

The facts are as follows. On Wednesday, January 6, 2010, a confidential informant ("CI") told Sergeant Louis Wilson of the Smithton Police Department that he had seen images of young, nude girls on Defendant's cell phone the day before. He believed the girls were about 14 years old, possibly younger. Defendant had bragged to him about having sexual intercourse with the girls. The CI was able to describe the images. He knew the girls' first names and the towns they were from. The CI told Wilson that Defendant currently had one working cell phone and that the images of the girls were on that phone. He added that Defendant changed cell phones regularly and had gone through three in a short period of time. The CI also disclosed that he would be with Defendant later that night.

Before the CI came to him, Wilson had spoken with minor female "B.S.", who told him Defendant was having sex with another minor and had been hitting on B.S. and her minor girlfriends. Another girl, "K.D.", told Wilson that she had had sex with Defendant when she was 14 and he was 19. Wilson had seen Defendant before in his yard with girls as young as 11, and other police officers in Smithton had heard in the community that Defendant was sexually involved with young girls.

At this point, knowing the CI and Defendant were friends, Wilson was concerned the CI would have a change of heart and tip Defendant off. Defendant could easily delete the images from his phone. So Wilson arranged to have the CI send a text message that evening when he and Defendant were together. The CI followed the plan. That night Wilson received a text message indicating the CI was with Defendant and that Defendant had his cell phone. Wilson stopped their vehicle at around 9:25 p.m.*fn1 Defendant got out of the car and started to leave, but Wilson stopped him. Wilson asked whether the phone in Defendant's hand was his. When Defendant responded it was, Wilson told him to hand it over.

Wilson faxed his report about the seizure of the phone to FBI Cybercrimes Task Force Agent Mark Krug within about 12 hours to have Krug fill out the federal warrant application. Krug split time between his work for the FBI and his work as a detective in Collinsville, Illinois. At the time, he was working on an armed-robbery investigation and found Wilson's report Thursday afternoon. Needing more information, however, he called and left a message for Wilson. The two then spoke after hours that evening to discuss the details of the seizure. Krug asked for additional reports to be sent. On Friday, Krug worked on the robbery investigation pursuant to his duties with the Collinsville Police Department.

It took Krug some time to prepare the application because he had to review the reports from Wilson. He also had not drafted a federal search-warrant application for a cell phone before. Krug was the only full-time investigator with the Cybercrimes Task Force; the other investigators worked part-time and only came in on Wednesdays. Krug worked on the cell-phone affidavit Sunday evening on his own time, and faxed it to the U.S. Attorney's Office Monday. Assistant U.S. Attorney Nicole Gorovsky was in a hearing that day. Gorovsky finished the warrant application and submitted it to the magistrate on Tuesday, January 12. The search warrant was issued that day. No additional investigation was done between the time the phone was seized and the warrant application was submitted to the magistrate.

Upon receiving the signed warrant, Krug searched Defendant's cell phone and found numerous sexually explicit images of young girls.

III. Discussion

The central issue of Defendant's suppression motion is whether the delay of six days between the seizure of Defendant's cell phone based on probable cause and securing a search warrant for the phone constitutes an unreasonable seizure under the Fourth Amendment. If it is unreasonable, the evidence found ordinarily must be excluded, unless the officers can be found to have relied in good faith on the warrant. But ...


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