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United States v. Thomas

United States District Court, District of Columbia

August 15, 2019

UNITED STATES OF AMERICA,
v.
DAVID LEE THOMAS, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Defendant David Lee Thomas moves to suppress evidence seized from a cell phone left behind in the course of a robbery. Although the government obtained a warrant to search the cell phone, Thomas alleges that the government examined the cell phone's contents before obtaining the warrant. Because the record does not support that contention, the Court will DENY Thomas's motion.

         I. FINDINGS OF FACT

         At approximately 5:00 p.m. on June 28, 2017, Metropolitan Police Department (“MPD”) officers responded to a report of a robbery at a Dunkin Donuts at 4020 Minnesota Avenue, S.E., Washington, D.C. See Dkt. 23-1 at 3. Detective Daren Brake was the lead detective on the scene. Dkt. 31 at 17 (Apr. 5, 2019 Hrg. Tr.). According to Detective Brake, “the [store] clerk advised and the video surveillance confirmed” that a suspect “came into the store, ” waited until there were no customers present, “pulled a bandana that he had around his neck over his face, ” and approached the register. Id. at 18. The suspect “had in his hand a red bag and . . . his cell phone, ” id. at 19, which “appeared to be illuminated as if he might have been talking on it, ” id. at 18. The suspect then “pulled out a handgun and told the clerk to open the register.” Id. at 19.

         The suspect “opened the bag, and between lifting up his bandana, opening the bag and holding onto the gun, he laid his cell phone down on the counter.” Id. The clerk proceeded to place money into the bag after which the suspect exited the store. Id. at 19-20. According to Detective Brake, “[t]he video surveillance does not show the [suspect] picking up the cell phone that he laid down” before fleeing the scene. Id. at 19.

         At the crime scene, the MPD recovered a cell phone that, according to the cashier, “was definitely not there” prior to the robbery. Id. at 20. Upon discovering the cell phone, Detective Brake “called the crime scene technician, ” Officer Jay Gregory, to collect and process the evidence. Id. at 21. Detective Brake did not “recall actually being in possession of the phone” at any point during the crime scene investigation, and he denied that he ever attempted to access any of the digital evidence contained on the cell phone. Id. at 21-22.

         Officer Gregory arrived at the crime scene at 6:28 p.m. Id. at 102. He testified that he and two other crime scene technicians spoke with Detective Brake “about the crime scene, ” and Detective Brake informed Officer Gregory “that there was a cell phone that needed to be recovered.” Id. at 70-71. Pursuant to MPD policy, Officer Gregory's colleagues “beg[a]n photographing immediately.” Id. at 103. At the evidentiary hearing, the government offered into evidence photographs of the crime scene taken shortly after Officer Gregory arrived. See Gov. Exs. 3-5. The cell phone can be seen resting behind the counter, Gov. Ex. 4, “underneath” a “stand . . . on the counter that had some empty drink cups, ” Dkt. 31 at 71. According to Officer Gregory, he “put on a pair of rubber gloves[] and . . . picked up [the cell phone] from the counter and placed [it] directly into [a] paper bag.” Id. at 75; see also id. at 76 (“I picked the phone up just before I placed it in the paper bag.”). That paper bag was then placed in a clear evidence bag, see Gov. Ex. 9, which he initialed and sealed, Dkt. 31 at 81. Officer Gregory transported the cell phone to the MPD's Department of Forensic Science (“DFS”) for processing. Id. at 82- 83. Back at DFS, Officer Gregory removed the cell phone from the bag, “removed the back cover and removed the battery so that [he could] access the make, model and serial number of the phone, ” and he recorded that information. Id. at 77-78. He then placed the cell phone back in the paper bag and transferred it to an evidence storage bag, before depositing the cell phone with the Central Evidence Unit. Id. at 79-80. Officer Gregory provided the Central Evidence Unit with his “laboratory information management system ID card.” Id. at 82. DFS then created and scanned a bar code for the cell phone and took the cell phone into the evidence storage area. Id. The chain of custody log shows that Officer Gregory deposited the cell phone with the Central Evidence Unit at 7:18 pm on June 28, 2017. Gov Ex. 10 at 1. According to their testimony, neither Officer Gregory nor Detective Brake has seen the cell phone since then. Dkt. 31 at 83; 62.

         The chain of custody log shows that the cell phone remained in the Central Evidence Unit until July 6, 2017, when it was retrieved by Samantha Leach, a DFS employee. Gov Ex. 10 at 1. Although Leach did not testify, Officer Gregory explained that “[s]he would have been the one who obtained the swabbing of the phone” for “fingerprints or . . . DNA prior to [the phone] going to digital evidence.” Dkt. 31 at 96. Leach returned the cell phone to the Central Evidence Unit at 12:32 p.m.—approximately five hours after retrieving it. Gov Ex. 10 at 1.

         The MPD obtained a warrant to search the contents of the cell phone on July 10, 2017, and the warrant return states that the search of the cell phone was “executed” on July 13, 2017. See Gov. Ex. 1. Harry Lee, a forensic scientist then-employed by the digital evidence unit of DFS, testified that he received a copy of the warrant from his supervisor the day after the warrant issued, July 11, 2017, and he began work on analyzing the cell phone that day. Apr. 29, 2019 Hrg. Tr. (Rough at 5-6). Lee retrieved the cell phone from the Central Evidence Unit at 9:07 a.m., Gov. Ex. 10 at 1, placed the cell phone in a “faraday cage”— “a device that blocks all electronic communications in and out of a device, ” id. (Rough at 7)—and connected the cell phone to a “digital forensic workstation, ” id. Because “the phone had a device lock, ” Lee was unable to obtain a full image of the cell phone's contents. Id. (Rough at 8). Lee then requested that a colleague perform a “chip-off technique to retrieve the memory card”—a procedure by which one “disassemble[s]” the device by “melting the solder on the board to loosen the memory” to then “extract the memory card and place it on the memory card reader.” Id. (Rough at 9). The chip-off technique “completely dismantled” the cell phone and rendered it inoperable, id. (Rough at 62-63), but enabled Lee to connect the memory card to a memory card reader and begin the process of acquiring the cell phone's contents, id. (Rough at 9-10).

         After the acquisition was complete, Lee “tried to find any data that pertain[ed] to the search warrant” and “identified call logs, text message histories, any contacts e-mails, photos, videos and any sound recordings.” Id. (Rough at 12). He documented his results in a “mobile device acquisition” report, Gov. Ex. 11. The acquisition report identifies the “acquisition date” as July 11, 2017, and states that the software had “yielded [a] full list of contacts, call logs, text messages, web history, images, videos, audios, etc.” Id.; see also (Rough at 58) (“Q. And again, you said the you that the extraction was completed on the 11th? A. Yes.”). According to Lee, “the analysis process” was also completed on July 11, 2017. Id. (Rough at 61); see also Id. (Rough at 61) (“No more acquisition or analysis work was done after the 11th.”).

         Lee subsequently prepared a “report of examination, ” Gov. Ex. 12, which identifies the cell phone's telephone number, user name, and most frequently contacted “names” and “phone numbers.” Gov. Ex. 12. Lee testified that he drafted the substance of his report on July 12, 2017, before returning the cell phone to the central evidence locker at 10:46 a.m. Apr. 29, 2019 Hrg. Tr. (Rough at 30-31). Lee further testified that he saved a copy of his report to a CD and notified Detective Brake that he could retrieve the report. Id. at 19-20. Lee did not recall contacting anyone about the contents of the search or his report prior to providing a copy of the report to Detective Brake on July 12, 2017. Id. at 20-21.

         The next day, on July 13, 2017, Detective Brake successfully applied for a second search warrant, this time for the search of Thomas's residence on Texas Avenue, S.E., in Washington, D.C. See Gov. Ex. 2. In his supporting affidavit, Detective Brake attested that the cell phone was “processed” by DFS pursuant to the earlier-issued search warrant; id. at 2; that, based on that search, the owner of the cell phone appeared to be “Abe Thomas, ” id.; and that the MPD was able to ascertain the “phone numbers . . . called most frequently” from the cell phone, ” id. at 3. “The number called and texted most frequently by the defendant's cell phone, ” Detective Brake further attested, “was associated in the MPD database with a young woman whose first name is [‘Witness One'] who is listed in a police report as being friends with another young woman whose first name is [‘Witness Two'].” Id. Detective Brake wrote that he also compared photographs on the cell phone with photographs taken on the surveillance footage of several robberies and spoke with an individual at “defendant's last known address, ” who “was shown a confirmation photograph of the defendant” on July 12, 2017. Id. At the suppression hearing, Detective Brake confirmed that the search of the cell phone provided the basis for the second search warrant, explaining that “we were able to access the call log which . . . led [him] to Witness One which also led [him] to Witness Two.” Dkt. 31 at 25. During questioning, Detective Brake stated that he spoke to the witnesses “after [he] obtained the information from the [first] search warrant” and testified: “I obtained that information about July—I said July 13th, and we were trying to move pretty fast on this case. So it would have been around about that time.” Id. at 39-40.

         The affidavit in support of the second search warrant, however, stated that Detective Brake spoke with Witness One “on Tuesday, July 11, 2017”—that is, a day before Lee completed the “report of examination” and provided a copy of that report to Detective Brake. Gov. Ex. 2 at 2. When confronted with this inconsistency, Detective Brake testified, “I think I have my timeframe confused. I know we did the search warrant, the search warrant on the phone, on July 10th.” Dkt. 31 at 41. When pressed that the warrant return for the search of the cell phone indicated that the search was “executed” on “July 13, 2017” at “1400 hours, ”—that is, after both July 11, 2017 and July 12, 2017, the two dates that appeared in the second affidavit— Detective Brake stated:

I know I wrote July 13th here. I don't know, it's hard—I can't recall why. But I know we only got Witness One and Witness Two's information from the cell phone, so there's no way I could have talked to them prior to getting that information. And I know that we received the [first] search warrant on July 10th, and I gave ...

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