Wednesday, July 29th, 2020

Second Circuit: 31-Day Delay In Seeking Warrant To Search Seized Tablet Computer Violates Fourth Amendment, But Suppression Not Warranted Because Delay Resulted From Mere “Isolated Negligence.”

In United States v. Smith, the Circuit (Meyer, D. Conn., joined by Katzmann and Kearse), the Circuit held that police violated the Fourth Amendment by waiting 31 days before seeking a warrant to search a seized tablet computer, but declined to apply the exclusionary rule because the error was due to “isolated negligence,” and because existing precedent would not have told an objectively reasonable police officer that the delay was unreasonable.

Police encountered Smith, drunk to the point of unconsciousness, in his car on the side of the road in a rural area of upstate New York. After removing Smith from the car, and while searching the car for identification, an officer observed a tablet computer on the front passenger seat displaying what appeared to be child pornography. The officer arrested Smith for DUI and seized the tablet. Smith was released and refused consent to search the tablet. However, police retained custody of the tablet until they sought and obtained a warrant 31 days later. The warrant-authorized search revealed multiple images of child pornography. The district court (Mordue, NDNY) denied the motion to suppress and Smith entered a conditional guilty plea to possession of child pornography.

The Circuit affirmed the denial of the motion to suppress.

First, the Circuit found the 31-day delay in seeking a warrant unreasonable. The Circuit weighed four factors: (i) the length of delay; (ii) the importance of the item seized to Smith; (iii) whether Smith had a reduced property interest in the item seized; and (iv) the justification for the delay. The Circuit determined: (i) the 31-day delay far exceeded what is ordinarily reasonable; (ii) although digital storage devices such as computers and smart phones implicate heightened privacy interests, Smith made little use of this tablet and did not request its return; (iii) Smith did not reduce his property interest by relinquishing control of it or consenting to a search or seizure, and although there was probable cause to seize the tablet, it was not obviously inculpatory or contraband (like a murder weapon or drugs); and (iv) the police engaged in little investigation between the seizure and the warrant application, and his caseload did not excuse the delay.

Second, however, the Circuit determined that the exclusionary rule did not apply because the officer’s delay was not deliberate, reckless, or grossly negligent, but merely an “isolated act of negligence” that “did not afford the police any strategic advantage.” Nor was there any evidence of “systematic or recurring delays” by the officer or the investigative agencies involved. Moreover, it was not clear from existing precedent that a 31-day delay was unreasonable, as cases had upheld similar or longer delays. Going forward, the Circuit emphasized, a monthlong delay would ordinarily be deemed unreasonable, and seizures of digital storage devices would demand “heightened consideration” of the defendant’s interests. Judge Kearse concurred in the judgment, explaining that the 31-day delay was not unreasonable.

Separately, the Circuit affirmed Smith’s within-Guidelines sentence of 212 months. The district court did not commit procedural error in (i) crediting the testimony of a victim who testified that Smith had sexually abused her when she was 3 or 4 years old and applying the § 2G2.2(b)(5) pattern enhancement; or (ii) allowing that victim to speak at sentencing (even if she was not a victim of the offense of conviction), in light of 18 U.S.C. § 3661. The sentence was not substantively unreasonable in light of Smith’s possession of large amounts of child pornography and his history of sexually abusing children. United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), and United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017) were distinguished as Internet-only cases, whereas Smith had committed actual sexual abuse of children.

The takeaways for practitioners on the Fourth Amendment question are: (i) a monthlong delay in seeking a warrant to search seized property is ordinarily unreasonable; (ii) seizures of digital storage devices are subject to closer scrutiny; and (iii) if the government has seized but not yet obtained a warrant to search your client’s property, assert your client’s possessory and privacy interests by demanding its return, see Fed. R. Crim. P. 41(g).

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