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United States v. McTague

United States District Court, W.D. Virginia, Harrisonburg Division

January 9, 2017

UNITED STATES OF AMERICA
v.
MARIA ROSALBA ALVARADO MCTAGUE, et al., Defendants.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge.

         This matter is before the court on defendant Felix Chujoy's motion to suppress evidence obtained through the December 12, 2014 seizure and subsequent search of his iPhone. ECF No. 342. Felix Chujoy argues that the warrantiess seizure of his phone violated the Fourth Amendment to the United States Constitution, and thus all evidence obtained by searching that phone must be excluded as fruit of the poisonous tree. The government contends that Felix Chujoy abandoned his phone, and thus cannot now argue that the seizure was wrongful. On January 4, 2017, the court held an evidentiary hearing on Felix Chujoy's motion, during which the court heard the testimony of Special Agent Tami Ketcham, United States Department of Homeland Security ("Agent Ketcham"), who effected the seizure of the phone, and later swore and submitted an Affidavit for Search Warrant, see United States v. Apple iPhone. Model A1549. No. 5:15-mj-052, ECF No. 1, that resulted in the evidence at issue here. See ECF Nos. 349, 351.

         For the reasons that follow, the court finds that Felix Chujoy had abandoned his iPhone such that its seizure did not offend the Fourth Amendment. Accordingly, Felix Chujoy's motion (ECF No. 342) is DENIED.

         I.[1]

         On December 12, 2014, Maria Rosalba Alvarado McTague, Felix Chujoy's mother and codefendant, made her initial appearance at the Harrisonburg federal courthouse. By this point an arrest warrant for Felix Chujoy had been issued; he had not been detained, however, because he was at Army Reserves training in West Virginia. Accordingly, to facilitate Felix Chujoy's detention, Agent Ketcham contacted Felix Chujoy, told him of his mother's arrest and court appearance, and invited him to come to the Harrisonburg Homeland Security Investigations Office. Instead, Felix Chujoy, after obtaining permission from his commanding officer, went directly to the federal courthouse to attend his mother's initial appearance. He was accompanied by his sister and future codefendant, Gladys Chujoy.[2]

         When Gladys and Felix Chujoy arrived at the courthouse, they were informed by the court security officer ("CSO") that they could not bring cell phones into the building. The CSO instead suggested that they either return their phones to their vehicle or, if they so chose, hide the phones under a metal ashtray just outside the courthouse entrance. Agent Ketcham testified that she later learned that CSOs routinely make this suggestion to courthouse visitors who arrive with cell phones. Gladys and Felix Chujoy left their phones under the ashtray and entered the courthouse, at which point Felix Chujoy was promptly arrested.

         During Felix Chujoy's arrest, Agent Ketcham asked him for his cell phone. Felix Chujoy made no response. Apparently overhearing this exchange, the CSO went outside the front courthouse doors, retrieved the cell phones from under the ashtray and gave them to Agent Ketcham. Agent Ketcham testified that the CSO took this step of his own volition, stating that neither she nor Special Agent David Liu, who initiated the arrest, directed the CSO to find the phones or take any action.

         Later, Gladys Chujoy called Agent Ketcham to inquire after the phones. Agent Ketcham told her that she could pick her phone up at the Homeland Security office, but that Felix Chujoy's phone was being detained. Gladys Chujoy then told Agent Ketcham that Felix Chujoy needed to call his commanding officer in the Army Reserves to explain his absence. Agent Ketcham offered to look the number up if Felix Chujoy provided her the unlock code for the phone and limited consent to find the commanding officer's phone number. After some discussion, Felix Chujoy agreed.[3] He provided Agent Ketcham with the code, and she looked up the number of his commanding officer.

         Agent Ketcham did not search the phone at the time because she had no warrant to do so. Nonetheless, she did not release the phone to Felix Chujoy.[4] Instead, in January 2015, she applied to United States Magistrate Judge Joel C. Hoppe for a search warrant for the phone. Paragraph 18 of the failed search warrant application stated that the cell phone "came into the HSI's possession in the following way: it was seized incident to his arrest after he had abandoned the cellphone near the front doors of the courthouse." Agent Ketcham testified that Magistrate Judge Hoppe denied the application because there was an insufficient nexus between the phone and the crimes charged. Despite the denial of the warrant to search the cell phone, Agent Ketcham did not return it to Felix Chujoy. Rather, she retained it until August 2015, at which time, after further investigation, a warrant was issued to search the phone. In paragraph 21 of the August 13, 2015 search warrant application, Agent Ketcham averred that "p.]aw enforcement agents seized the DEVICE incident to arrest on December 12, 2014, after he had abandoned the cellphone near the front doors of the federal courthouse." In re the Search of Apple iPhone, 5:15mj0052, ECF No. 1. After Magistrate Judge Hoppe executed the August 13, 2015 warrant to search Felix Chujoy's iPhone, it was searched by a forensic examiner.

         At no point following the seizure of his cell phone on December 12, 2014 did Felix Chujoy file a motion under Rule 41(g) of the Federal Rules of Criminal Procedure for return of the phone.

         The legal issue facing the court does not concern the eventual forensic search of the cell phone. That was authorized by the August 13, 2015 warrant. Rather, the issue concerns Agent Ketcham's seizure of Felix Chujoy's cell phone on December 12, 2014 and her warrantless retention of it.

         II.

         The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. "When law enforcement officials have violated this right by unreasonably intruding on one or more of these protected spheres of privacy, the evidence gained as a result of that intrusion may, in appropriate cases, be ruled inadmissible at a subsequent criminal trial." United States v. Clark. 891 F.2d 501, 504-05 (4th Or. 1989). The question facing the court is whether Felix Chujoy's cell phone, left under an ashtray outside the courthouse doors, falls within the sphere of privacy protected by the Fourth Amendment. The Fourth Amendment does not prohibit law enforcement officials from seizing abandoned property. Abel v. United States. 362 U.S. 217, 241 (1960). Abandonment under the Fourth Amendment is not the same as abandonment "in the strict properly-right sense." United States v. Edwards, 441 F.2d 749, 753 (5th Cir. 1971). Rather, "[t]he proper test for abandonment is not whether all formal properly rights have been relinquished, but whether the complaining parly retains a reasonable expectation of privacy in the properly alleged to be abandoned." United States v. Stevenson. 396 F.3d 538, 546 (4th Cir. 2005) (brackets and internal quotation marks omitted) (quoting United States v. Haynie, 637 F.2d 227, 237 (4th Cir. 1980)). "When a person has 'so relinquished his interest in the property that he no longer retains a reasonable expectation of privacy in it at the time of the search' he has no standing to complain of a Fourth Amendment violation." United States v. McFillin. 713 F.2d 57, 59 (4th Cir. 1981) (quoting United States v. CeUa. 568 F.2d 1266, 1283 (9th Cir. 1977)); see United States v. Cofield. 272 F.3d 1303, 1306 (11th Cir. 2001) ("In determining whether there has been abandonment, the critical inquiry is whether the person prejudiced by the search voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search."). Accordingly, in deciding whether a defendant has abandoned property, the court must consider "the suspect's words and actions and the surrounding circumstances." United States v. Clemons. No. 95-5162, 1995 WL 729479, at *3 (4th Cir. Dec. 11, 1995) (unpublished) (citing United States v. Jones. 707 F.2d 1169, 1172 (10th Cir. 1983)).

         Whether an expectation of privacy is "reasonable, " and thus entitled to Fourth Amendment protection, turns on subjective and objective components. "[F]irst... a person [must] have exhibited an actual (subjective) expectation of privacy and, second, that... expectation [must] be one mat society is prepared to recognize as 'reasonable.'" United States v. Clark, 891 F.2d 501, 506 (4th Cir. 1989) (emphasis and internal quotation marks omitted) (second and third brackets and ellipses in original) (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). "While the individual whose property was searched bears the burden of proving a legitimate expectation of privacy in the items searched, the burden of proving abandonment is on the government." Cofield. 272 ...


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