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United States v. Brewer

United States District Court, M.D. Pennsylvania

May 12, 2015

UNITED STATES OF AMERICA
v.
JESSE BREWER, Defendant

MEMORANDUM

William W. Caldwell, United States District Judge.

I. Introduction

We are considering two motions to suppress evidence. (Doc. 164; Doc. 165). This matter relates to a two count indictment returned by the Grand Jury on May 15, 2013. (Doc. 22). Count one of the indictment charges Jamell Smallwood, Timothy Forbes, and Jesse Brewer with interference with commerce by robbery, a violation of 18 U.S.C. § 1951(a). (Id.). Count two charges the same defendants with the use of a firearm during a crime of violence, a violation of 18 U.S.C. § 924(c)(1)(A). (Id.). Brewer has filed two motions to suppress evidence, each seeking to exclude evidence recovered from a cell phone. For the reasons discussed below, we will deny both motions.

II. Background

On July 12, 2012, at approximately 10:28 a.m., three individuals robbed White Jewelers in York, Pennsylvania. (Doc. 164-4 at 4). During the course of the robbery, one of the assailants was accidently shot by a co-conspirator. (Id. at 5). Thereafter, the robbers fled the store in a green Hyundai Elantra, later determined to be stolen. (Id. at 4). Police located the Elantra a short distance away in the parking lot of an apartment complex. (Id.). A witness reported that four individuals exited the Elantra and entered a black Chevrolet Impala. (Id.). The license plate of the Impala was registered to Zarifa Lawson of Allentown, Pennsylvania – the girlfriend of Timothy Forbes. (Id. at 4, 6). The investigating officers contacted Allentown Police Department and learned that the Impala had been stopped in a drug sweep two and half months earlier. (Id.). At that time, it was driven by Jamell Smallwood. (Id. at 5).

A few hours after the robbery, Jamell Smallwood was admitted to Bronx Lebanon Hospital with a gunshot wound to his abdomen. (Id.). New York City Police Department responded to the hospital to interview Smallwood. (Id.). Smallwood was uncooperative. (Id.). His sister arrived at the hospital and told police that Smallwood lived in Allentown, Pennsylvania and that she did not know what he was doing in New York. (Id.). NYPD contacted Allentown Police Department to inquire about Smallwood. (Id.). Allentown advised them of the robbery and that one of the robbers was shot. (Id.). Investigating officers filed a criminal complaint against Smallwood and procured a warrant for his arrest. (Doc. 164-1). Thereafter, NYPD arrested Smallwood. (Doc. 164-4 at 5). At the time of his arrest, Smallwood was in possession of a cell phone. (Id.). Smallwood identified the phone as his and told police that his phone number was (470) 334-5777. (Id. at 6). NYPD seized the phone and subsequently turned it over to investigating officers. (Id.).

On July 13, 2012, the police interviewed Timothy Forbes’ girlfriend, Zarifa Lawson. (Id.). Lawson viewed the security camera footage of the robbery and identified Forbes as one of the robbers. She also advised that Forbes’ cell phone number was (484) 707-1632. (Id.).

On July 20, 2012, investigating officers applied for and were granted search warrants for Smallwood’s phone[1] and Forbes’ phones. (Doc. 164-4). A common call analysis of those phones revealed that both phones had contact with one common number around the time of the robbery – (347) 965-4252. (Doc. 165-1 at 5). On September 4, 2012, this information, in turn, was used to acquire a search warrant for the 4252 phone. (Doc. 165-1). That search disclosed that the phone was subscribed to Jesse Brewer. (Doc. 165-2 at 4). On January 23, 2013, investigating officers applied for a second search warrant for Brewer’s phone, this time seeking call detail records. (Doc. 165-2). The affidavit of probable cause relied on the facts recovered from the previous search of Brewer’s phone and the search of Smallwood’s phone. (Id. at 5). Finally, on March 8, 2013, police applied for a third search warrant for Brewer’s phone, seeking GPS call origination and termination information. (Doc. 165-3). The affidavit of probable cause for that warrant relied on the facts recovered from: (1) the first search of Brewer’s phone; (2) the search of Smallwood’s phone; and (3) the search of Forbes’ phone. (Id. at 5).

On April 8, 2015, Brewer filed his motions to suppress and requested evidentiary hearings. The first motion asserts that the search warrant for Smallwood’s phone was invalid because the affidavit lacked probable cause. (Doc. 164 at 5). In his second motion, Brewer argues that the search warrants issued for his phone were based on unlawfully obtained information from Smallwood’s phone, and therefore all the information recovered from his phone must be suppressed as fruit of the poisonous tree. (Doc. 165 at 7). Because both of Brewer’s motions hinge on the search of Smallwood’s phone, we focus our discussion on the validity of that search.

III. Discussion

A. Capacity to Challenge

As a threshold matter, we must decide if Brewer has the capacity to challenge the search of Smallwood’s phone. Fourth Amendment rights against unreasonable searches and seizures are personal in nature. Rakas v. Illinois, 439 U.S. 128, 140 (1978). Therefore, a criminal defendant only has the capacity to challenge a search if the search violates his own Fourth Amendment rights, not the rights of a third party. Id. at 134, 140. This requires that the defendant demonstrate that he had a legitimate expectation of privacy in the place invaded. Katz v. United States, 389 U.S. 347, 353 (1967). Brewer argues that he had a legitimate expectation of privacy in the phone possessed by Smallwood because the subscriber information for the phone listed Brewer as the financially liable party, the billing party, and the user. (Doc. 166 at 6-8).

To demonstrate a legitimate expectation of privacy in the placed searched, the person challenging the search has the burden of showing two things: (1) he manifested a subjective expectation of privacy in the object – i.e., by his conduct, he has exhibited an actual expectation of privacy; and (2) that expectation is one that society recognizes as reasonable. Minnesota v. Olson, 495 U.S. 91, 95-96 (1990); United States v. Correa, 653 F.3d 187, 190 (3d Cir. 2011). “While property ownership is clearly [one] factor to be considered . . ., property rights are neither the beginning nor the end of [a] [c]ourt’s inquiry” into this showing. United States v. Salvucci, 448 U.S. 83, 91-92 (1980). Several other factors are relevant: whether the party had a possessory interest in the place searched; whether the party can exclude others from the place searched; whether the party took precautions to maintain privacy; and whether the object searched was voluntarily turned over to third parties. Warner v. McCunney, 259 F. App’x 476, 478 (3d Cir. 2008); United States v. Coates, 462 F. App’x 199, 203 (3d Cir. 2012). Indeed, even with property rights, the Third Circuit has held that there can be no legitimate expectation of privacy if the object searched was voluntarily turned over to a third party. Coates, 462 F. App’x at 203.

Here, as the phone’s subscriber, Brewer may have had some unknown property interest in the phone. But, considering the other relevant factors, it is clear to us that Brewer has failed to satisfy his burden of demonstrating that he manifested a subjective expectation of privacy in the phone. First, at the time the phone was seized, it was in the possession of Jamell Smallwood. Second, Brewer produced no evidence to demonstrate that, despite Smallwood’s possession, he maintained the ability exclude others from the phone or took precautions to maintain his privacy in the phone. To the contrary, the evidence shows that Brewer voluntarily turned the phone over to Smallwood, who subsequently claimed complete ownership and control. See Coates, 462 F. App’x at 203. Therefore, by his conduct, Brewer did ...


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