United States v. Langford

1

UNITED STATES OF AMERICA, Plaintiff, v. ASHLEY DAWN LANGFORD, Defendant.

No. CR-21-216-RAW

United States District Court, E.D. Oklahoma

October 25, 2021

REPORT AND RECOMMENDATION

STEVEN P. SHREDER UNITED STATES MAGISTRATE JUDGE.

The Defendant Ashley Dawn Langford was charged by way of indictment with two counts of sexual abuse of a minor in Indian Country, in violation of 18 U.S.C. §§ 2243(a), 2246(2)(A), 1151, & 1153, as well as one count of sexual abuse of a minor, in violation of 18 U.S.C §§ 2243(a), 2246(2)(B), 1151, & 1153. The Defendant has moved to suppress evidence obtained pursuant to a search warrant for a cell phone search, and the Court referred the Defendant's motion for findings and recommendation pursuant to 28 U.S.C. § 636(b)(1). See Docket No. 25. A suppression hearing was conducted on October 12, 2021. See Docket No. 53. For the reasons set forth below, the undersigned Magistrate Judge recommends that the Defendant's Motion to Suppress and Brief in Support Thereof [Docket No. 22] be GRANTED.

Factual Summary

This case arose pursuant to a child sexual abuse investigation. A minor, C.C., had reported to the Eufaula Police Department in Eufaula, Oklahoma, that his babysitter, the Defendant, had engaged him in sexual acts beginning when he was thirteen years old. The Defendant was interviewed multiple times by the Eufaula Police Department and made a series of increasingly inculpatory statements. She was then arrested, and her cell phone was one of the items taken into evidence.^[1] Officers then worked to secure a search warrant of the phone.

Eufaula Police Department Detective Josh Cummings was the affiant for the search warrant, and he also prepared the search warrant for the state court judge's signature. Detective Cummings testified at the suppression hearing that he prepared the affidavit and search warrant with assistance from another District 25 Violent Crimes Task Force Agent, and that he believed that evidence of a crime or crimes was on the phone.

As relevant here, the affidavit for the search warrant identified the cell phone by model and serial number “with a clear/floral designed case.” Hr'g Ex 1, p. 1. It was described as:

A cell phone containing digital, magnetic, or electronic data, or electronic data storage devices, and the content of such cell phone which in whole or part depict letters, subscriber information from SIM (subscriber identification module), electronic mail, internet chat communications, instant messaging, SMS (short message service), MMS (multimedia message service), call log, phone book, legal documents, photographs, images, graphics, pictures, videos, movies, audio or video recordings, or motion pictures, or any recorded documents depicting communication correspondence or storage of these communication, files, graphics, documents, or other data related to the crime of Rape.

Hr'g Ex. 1, p. 1 (emphasis added). In support of probable cause, Detective Cummings recited his experience as a law enforcement officer, as well as the allegations supporting the arrest of the Defendant, i. e., the report of C.C. that he had engaged in sex with the Defendant on more than one occasion two years prior when he was around fourteen years old, and that the Defendant, following a polygraph and interview, had disclosed engaging in sex acts with C.C. Detective Cummings then included general statements regarding the usefulness of cell phones in containing evidence of inappropriate relationships between adults and minors, as well as evidence of crimes including “trophy pictures.” Id., pp. 2-3. He then cited to Riley v. California, 573 U.S. 373 (2014) to provide a more accurate description of a cell phone, the kinds of information on them, and the need for a search warrant before searching them. Id., p. 3. He then concluded by requesting a search warrant of the phone. Notably, the affidavit does not identify whose phone is being searched or identify any connection between this phone and the crimes alleged in the affidavit.

The search warrant itself likewise identified the cell phone by model and serial number, “with a clear/floral designed case, ” stating that the affiant believed it contained evidence related to “the commission of a criminal offense.” See Hr'g Ex. 2. In its entirety, the parameters of the search warrant stated:

A cell phone containing digital, magnetic, or electronic data, or electronic data storage devices, and the content of such cell phone which in whole or part depict letters, subscriber information from SIM (subscriber identification module), electronic mail, internet chat communications, instant messaging, SMS (short message service), MMS (multimedia message service), call log, phone book, legal documents, photographs, images, graphics, pictures, videos, movies, audio or video recordings, or motion pictures, or any recorded documents depicting communication correspondence or storage of these communication, files, graphics, documents, or other data related to locating a missing person.

Hr'g. Ex. 2 (emphasis added). The search warrant thus did not identify a specific crime.

A McIntosh County state court judge signed the search warrant and Detective Cummings then turned the phone over to Okmulgee Police Department Captain Ables to perform the extraction of data from the phone. Detective Cummings testified that Captain Ables, another member of the Violent Crimes Task Force, had access to the technology to perform the extraction that his office did not. Detective Cummings did not place any limitations on Captain Ables as to what should be downloaded from the phone. Captain Ables then performed the extraction and contacted Detective Cummings to retrieve the phone and the data that had been placed on a thumb drive. Detective Cummings testified that Captain Ables did not review the data, he simply transferred it to the thumb drive, and that it was Detective Cummings himself who actually reviewed the data. Finally, Detective Cummings testified that he only reviewed files that he thought might be pertinent, including pictures and messages, but not videos.

Analysis

The Defendant has now moved to suppress the search warrant of her cell phone. In support, the Defendant contends that the search warrant was invalid and overbroad, and that good faith does not apply because the affidavit in support of the search warrant was “bare bones” despite its length. More specifically, the Defendant contends that the search warrant did not even identify a crime, instead referred to “data related to a missing person, ” and that the affidavit did not support a probable cause determination, nor was there language connecting the phone to the Defendant. The Government contends there was a fair probability that the Defendant's cell phone contained evidence of violations of the law and the issuance of the search warrant was therefore legally sound. Alternatively, the Government contends that Detective Cummings relied on the warrant in good faith.

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. In other words, the Fourth Amendment requires that: (i) “a warrant must be supported by probable cause, and [ii] it must describe with particularity the place to be searched, and the persons or things to be seized.” United States v. Russian, 848 F.3d 1239, 1244 (10th Cir. 2017) (quotation omitted). The determination this Court must make is whether “the issuing magistrate had a substantial basis for concluding that probable cause existed.” United States v. Corral, 970 F.2d 719, 726 (10th Cir. 1992) (citations omitted). In this regard, affidavits submitted in support of a probable cause determination are to be judged by the “totality of the circumstances” standard outlined by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 235 (1983). Furthermore, “[a] defendant challenging a search pursuant to a warrant has the burden of proof.” United States v. Harrison, 566 F.3d 1254, 1256 (10th Cir. 2009). The undersigned Magistrate Judge will therefore first address whether the search warrant was supported by probable cause.

“‘Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'” United States v. Nolan, 199 F.3d 1180, 1182-1183 (10th Cir. 1999) (quoting Gates, 462 U.S. at 235). “Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched.” United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir. 1990) (citing United States v. McCoy, 781 F.2d 168, 172 (10th Cir. 1985)). See also United States v. Sparks, 291 F.3d 683, 689 (10th Cir. 2002) (finding that probable cause existed for a search warrant when “Detective Owens did not have conclusive proof that Sparks was living in the residence outside the city limits . . . [but] Owens had a reasonable basis for believing that Sparks resided in the house[.]”). In this regard, the underlying affidavit, as summarized by the Government stated that “C.C. disclosed to his mother a series of sexual assaults by Defendant over an extended time; that Defendant admitted having had anal sex with C.C. numerous times over an period of approximately three months; that Defendant reported C.C. having made threats against himself, Defendant, and her children; that Detective Cummings knew that cell phones were used to store evidence of crimes; and that, as Riley v. California saw, cell phones are used frequently by a majority of Americans.” Docket No. 51, p. 1 (quotation omitted). The question, therefore, is whether the underlying affidavit established a sufficient nexus between the...