United States v. Bragg

44 F.4th 1067

UNITED STATES of America, Plaintiff - Appellee

v.Darvill Jimmy Joseph BRAGG, Defendant - Appellant

No. 21-2096

United States Court of Appeals, Eighth Circuit.

Submitted: February 17, 2022

Filed: August 15, 2022

Heather Quick, Asst. Fed. Public Defender, Davenport, IA, argued, for defendant-appellant.

William R. Ripley, Asst. U.S. Atty., Cedar Rapids, IA, argued (Richard D. Westphal, Acting U.S. Atty., on the brief), for plaintiff-appellee.

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

LOKEN, Circuit Judge.

A jury convicted Darvill Bragg of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). The district court¹ sentenced him as an armed career criminal to 240 months’ imprisonment. 18 U.S.C. § 924(e). Bragg appeals his conviction, arguing that evidence from his iPhone should have been suppressed because the government delayed unreasonably before seeking a search warrant, and that prior firearm convictions were improperly admitted under Federal Rule of Evidence 404(b). He also appeals his sentence, arguing that neither his Iowa willful injury conviction nor his two Illinois armed robbery convictions qualify as "violent felonies" under § 924(e). He further argues the Illinois robbery convictions were not "committed on occasions different from one another," § 924(e)(1), and thus constitute only one prior violent felony conviction. We affirm.

I. The iPhone Evidence Issue

On the night of October 25, 2019, Davenport, Iowa police investigated a "shots fired" incident. The victim, Jalen Ross, told police that when he arrived at the apartment of his ex-girlfriend, Tontianna Hill, Merrill Howard and Darvill Bragg, Hill's new boyfriend, shot at him from a black Chevrolet Impala. Ross recognized Bragg from Facebook pictures. He said Bragg was holding a black revolver. Based on this information, police stopped a black Impala they observed returning to the apartment complex. Hill was driving with Bragg in the passenger seat. When police recovered an unloaded black revolver from the map pocket directly in front of Bragg, they arrested Bragg and seized four iPhones. Hill identified one as belonging to Bragg. At trial, the government introduced videos recovered in a warrant search of the iPhone, including an October 20 video in which Bragg was carrying a revolver matching the gun found in the Impala's map pocket and wearing the sweatshirt he was wearing when arrested.

At the time of his arrest, Bragg was also the primary suspect of a separate shots fired incident on October 17. Detective Bryan Butt was investigating that shooting and was assigned to investigate the October 25 shooting, as well as other shooting incidents that plagued Davenport in late October and early November 2019. Based on the October 25 shooting incident, Detective Butt applied for a warrant to search Bragg's residence on October 31 and a warrant to search his iPhone on November 18. Both warrants issued. Bragg does not argue the issuing magistrates lacked probable cause to issue either warrant. Bragg was always in custody after his arrest.

Bragg's iPhone was seized incident to his lawful arrest. Given the volume and sensitive nature of information stored on modern cell phones, "a warrant is generally required" before the search of a cell phone seized incident to arrest. Riley v. California, 573 U.S. 373, 401, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). Because a seizure is generally less intrusive than a search, the Supreme Court "has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, where a warrantless search ... would have been held impermissible." Segura v. United States, 468 U.S. 796, 806, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (citations omitted). However, "a seizure reasonable at its inception ... may become unreasonable as a result of its duration." Id. at 812, 104 S.Ct. 3380. These general principles apply in this case.

On appeal, Bragg argues, as he did to the district court, that Detective Butt's twenty-four-day delay in applying for a warrant to search the iPhone violated the Fourth Amendment and therefore the district court erred in not suppressing evidence recovered in the ensuing warrant search of the iPhone. We disagree.

Detective Butt was the only witness at the pre-trial suppression hearing. He described his overlapping investigations of two shooting incidents in which Bragg was the primary suspect, which involved multiple crime scenes, witnesses, and warrants, and his participation in investigating other firearm and shooting incidents in late October and early November 2019. He explained that evidence destruction concerns made it more imperative to get a warrant to search Bragg's residence than his iPhone. In testimony the district court explicitly credited, Butt testified that, after the iPhone warrant issued, he did an initial review of the extracted data, identified videos showing Bragg in possession of a firearm, and provided that data to the United States Attorney's Office. Thus, any later delays are not at issue on appeal.

Based on Butt's testimony, the district court concluded that the twenty-four-day delay in applying for a warrant to search what Hill identified as Bragg's iPhone was not unreasonable. Balancing the governmental and private interests at issue in light of the relevant facts and circumstances, the court concluded that "typical staleness" concerns were not involved because electronic devices such as cell phones retain data for long periods of time. Addressing the length of the delay, the court ruled that "although it is never a good thing to deprive people of their property without determining its evidentiary value, the delay here of twenty-four days does not seem excessive especially in light of the fact of [Bragg's] arrest and detention." Bragg appeals this ruling. We review the district court's findings of fact for clear error and its conclusion that the Fourth Amendment was not violated de novo . See United States v. Mays, 993 F.3d 607, 614 (8th Cir. 2021).

The question whether Detective Butt unreasonably delayed in applying for a warrant to search the iPhone "is measured in objective terms by examining the totality of the circumstances," which requires us to balance "privacy-related and law enforcement-related concerns." Mays, 993 F.3d at 616-17 (quotations omitted).

On the private-interests side, relevant considerations include the significance of the interference with the person's possessory interest, the duration of the delay, whether the person consented to the seizure, and the nature of the seized property. On the government-interests side, relevant considerations include the government's legitimate interest in holding the property as evidence, the nature and complexity of the investigation, the quality of the warrant application and the amount of time we expect the application would take to prepare, and any other evidence proving or disproving law enforcement's diligence in obtaining the warrant.

Id. at 617 (citations omitted).

Although significantly longer delays have been upheld as not unreasonable, without question the twenty-four day delay at issue is of concern. Compare Mays, 993 F.3d at 617 (fifteen-day delay is a "considerable period"), with United States v. Stabile, 633 F.3d 219, 235-36 (3d Cir.) (three-month delay troubling but reasonable under the circumstances), cert. denied, 565 U.S. 942, 132 S.Ct. 399, 181 L.Ed.2d 256 (2011).

As the Supreme Court's opinion in Riley made clear, the property seized -- an iPhone identified as belonging to Bragg -- raises powerful Fourth Amendment concerns, both in the quality and quantity of private personal data it likely contains, and because lengthy seizure of an item of vital importance in daily life is likely to significantly interfere with a person's possessory interests. See Robbins v. City of Des Moines, 984 F.3d 673, 680-81 (8th Cir. 2021) (warrantless seizure of cell phone and camera, and detention for twelve days without arguable probable cause unreasonable). However, as the district court recognized, these concerns are greatly lessened in this case.

First, because smartphones "retain data for long periods of time," delay between the time a cell phone is seized and when it is searched is not likely to cause stored personal data to be lost, or data of potential evidentiary relevance to become stale. More important to the private interests at stake, Bragg was in police custody for the entire twenty-four-day period, and there is no evidence that either Bragg or anyone acting on his behalf made a request or demand for its return, or even inquired about it. See United States v. Clutter, 674 F.3d 980, 984-85 (8th Cir.) (temporary seizure of a jailed defendant's computers "did not meaningfully interfere with his possessory interests"), cert. denied, 568 U.S. 882, 133 S.Ct. 272, 184 L.Ed.2d 148 (2012) ; Stabile, 633 F.3d at 235-36 (no return requested until eighteen months after seizure). As the Supreme Court observed in United States v. Johns, defendants who "never sought return of the property ... have not even alleged, much less proved, that the delay in the search ... adversely affected legitimate interests protected by the Fourth Amendment." 469 U.S. 478, 487, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985).

By contrast, the government had a strong legitimate interest in seizing the iPhone incident to Bragg's lawful arrest. They had probable cause to believe Bragg was guilty of a federal law firearm offense and/or a state law felony shooting offense. "[A]ll else being equal, the Fourth Amendment will tolerate greater delays after probable-cause seizures." United States v. Smith, 967 F.3d 198, 209 (2d Cir. 2020) (quotation omitted); see Mays, 993 F.3d at 617. Here, the relevant circumstances, including Hill's statement that it was Bragg's iPhone, gave officers reason to hold the iPhone to apply for a warrant to search for evidence of any offense that may be charged,...