United States v. Pratt

915 F.3d 266

UNITED STATES of America, Plaintiff - Appellee,

v.Samuel PRATT, a/k/a Promise, Defendant – Appellant.

No. 17-4489

United States Court of Appeals, Fourth Circuit.

Argued: September 28, 2018

Decided: February 8, 2019

ARGUED: David Bruce Betts, LAW OFFICES OF DAVID B. BETTS, Columbia, South Carolina, for Appellant. James Hunter May, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before MOTZ, AGEE, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Motz and Judge Agee joined.

DIAZ, Circuit Judge:

Samuel Pratt was convicted of eight counts related to sex trafficking and child pornography. He appeals on two grounds. On the first ground, we hold that the district court should have suppressed evidence from Pratt’s cellphone. That error was not harmless because the remaining evidence does not satisfy the elements of the two child pornography counts. On the second ground, we hold that the district court did not err in admitting hearsay statements. Accordingly, we vacate Pratt’s convictions on the two child pornography counts, affirm his other six convictions, vacate his sentence, and remand to the district court.

I.

FBI agents in the Carolinas investigated Samuel Pratt for running a prostitution ring that included juveniles. The agents found a post on Backpage.com in which Pratt advertised the sexual services of seventeen-year-old "RM"¹ at a hotel in Columbia, South Carolina. An agent scheduled a "date" with RM at the hotel for February 3, 2016. When the agent entered the hotel room, he identified himself to RM as law enforcement. She agreed to speak with several agents. RM told them she was seventeen and working as a prostitute at the hotel. She said her "boyfriend" Pratt brought her across state lines from North Carolina. J.A. 66. Responding to an agent’s question, she said she had texted nude photographs of herself to Pratt’s phone. RM allowed FBI agents to take her cellphone.

At the same time, two FBI agents spoke to Pratt in the hotel parking lot. Agent Stansbury, who had spoken with RM, joined them. Stansbury confronted Pratt, who was holding an iPhone. Pratt told Stansbury the phone was his. Stansbury asked if Pratt had nude photos of RM on the phone. Pratt responded "yes, I’ve got pictures of her on the phone." J.A. 67.

Stansbury then seized the phone, telling Pratt the FBI would get a search warrant. Pratt refused to consent to the seizure or disclose the phone’s passcode. And the FBI didn’t get a warrant to search the phone until March 4, 2016—a full 31 days after seizing it. When agents finally searched the phone, they found nude images of RM and incriminating text conversations with RM and others.

Soon after, a federal grand jury indicted Pratt.² At Pratt’s initial appearance, the magistrate judge ordered him to have no contact with anyone "who is a witness, or may be a witness, or a victim." J.A. 524. Despite that order, Pratt repeatedly called his mother from prison to coordinate continued prostitution operations. In several calls, he had his mother put RM on the phone. He repeatedly told RM not to testify or cooperate.

Before trial, Pratt moved to suppress evidence from his phone. In his written pleadings, Pratt only contended that the seizure of the phone was unconstitutional. But at the suppression hearing, he also argued that the delay between the seizure and obtaining the search warrant was unconstitutional. The government explained that the delay came from the need to decide whether to seek a warrant in North Carolina or South Carolina. Ruling from the bench, the district court denied the suppression motion, finding the seizure justified and the delay reasonable.

The government tried to get RM to testify. Several months after Pratt’s calls from jail, the FBI served her with a subpoena. When agents later spoke to her, she refused to testify. The FBI obtained a material witness warrant for her, but the U.S. Marshals couldn’t find her. Several other women would testify at trial that Pratt would beat any prostitute—including RM—whom he considered disobedient.

With RM unavailable, the government sought to introduce her statements to FBI agents about the prostitution ring and about the nude images she sent Pratt. The district court overruled Pratt’s hearsay and confrontation objections, ruling that Pratt forfeited those objections by intimidating RM into refusing to testify. An agent then recounted RM’s statements.

In addition, the government introduced evidence from Pratt’s cellphone. That evidence included 28 images alleged to be child pornography, metadata for the images, text message conversations, and advertisements Pratt placed for prostitution. The government also introduced an "extraction report" on data from RM’s phone. It included text messages but didn’t include photos or videos.³

The jury convicted Pratt on all eight counts. The district court imposed life sentences on four counts and concurrent time on the other four. Pratt appeals the denial of his suppression motion and the admission of RM’s prior statements.

II.

Pratt contends that the district court should have suppressed information from his cellphone because the FBI unreasonably delayed getting a search warrant. He does not contend that the seizure of the phone itself was unconstitutional. To justify the delay, the government points to the difficulty of coordinating the various law enforcement agencies involved in the Pratt investigation and deciding where to seek a search warrant for the phone. In the alternative, the government argues that it could keep the phone indefinitely because it was an instrumentality of Pratt’s crimes.

We review the factual findings in a suppression motion for clear error and the legal conclusions de novo.⁴ See United States v. Kehoe , 893 F.3d 232, 237 (4th Cir. 2018). If the district court erred, we must assess whether any such error was harmless. See Fed. R. Crim. P. 52(a) ; United States v. Abu Ali , 528 F.3d 210, 231 (4th Cir. 2008).

We hold that the district court erred by denying the suppression motion and that the error was not harmless regarding the child pornography counts.

A.

The constitutional question is whether the extended seizure of Pratt’s phone was reasonable. A seizure that is "lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests." United States v. Jacobsen , 466 U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (citing United States v. Place , 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) ). To determine if an extended seizure violates the Fourth Amendment, we balance the government’s interest in the seizure against the individual’s possessory interest in the object seized. See Place , 462 U.S. at 703, 103 S.Ct. 2637 ; United States v. Van Leeuwen , 397 U.S. 249, 252–53, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970).

A strong government interest can justify an extended seizure. See, e.g. , Illinois v. McArthur , 531 U.S. 326, 332–33, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (suspect prevented from entering home for two hours while officers obtained a warrant); United States v. Montoya de Hernandez , 473 U.S. 531, 541–44, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (suspected alimentary canal smuggler detained for 16 hours); Van Leeuwen , 397 U.S. at 252–53, 90 S.Ct. 1029 (package detained for 29 hours while seeking a warrant). But if the individual’s interest outweighs the government’s, an extended seizure may be unreasonable. See Rodriguez v. United States , ––– U.S. ––––, 135 S.Ct. 1609, 1615–16, 191 L.Ed.2d 492 (2015) (traffic stop extended for dog sniff without reasonable suspicion); Place , 462 U.S. at 698–99, 103 S.Ct. 2637 (traveler’s luggage detained at airport for 90 minutes to conduct dog sniff). An individual diminishes his interest if he consents to the seizure or voluntarily shares the seized object’s contents. See, e.g. , United States v. Christie , 717 F.3d 1156, 1162–63 (10th Cir. 2013).

Here, Pratt didn’t diminish his possessory interest in the phone. He didn’t consent to its seizure or voluntarily share the phone’s contents. The government’s only explanation for the 31-day delay in obtaining a warrant was that Pratt committed crimes in both North Carolina and South Carolina and agents had to decide where to seek a warrant. We find this explanation insufficient to justify the extended seizure of Pratt’s phone.

Pratt’s case parallels United States v. Mitchell , 565 F.3d 1347 (11th Cir. 2009). There, an agent seized a computer but failed to obtain a search warrant for 21 days. Id. at 1351. The agent explained that he left town for a lengthy training and didn’t think the warrant was urgent. Id. The Eleventh Circuit considered the seizure unreasonable because the agent could have applied for a warrant before he left or passed the case to someone else. Id. at 1351–52. But the court cautioned that overwhelmed police resources or other "overriding circumstances" could justify extended delays. Id. at 1353.

The Eleventh Circuit has applied this standard in two later cases. In United States v. Vallimont , 378 F. App'x 972, 975–76 (11th Cir. 2010), it upheld a 45-day delay in getting a search warrant for a seized computer. The delay was reasonable because the investigator was diverted to other cases, the county’s resources were overwhelmed, and the defendant diminished his privacy interest by giving another person access to the computer. Id. And in United States v. Laist , 702 F.3d 608, 616–17 (11th Cir. 2012), the court upheld a 25-day delay in getting a search warrant for a seized computer. The delay was reasonable because the agents worked diligently on the affidavit; they were responsible for investigations in ten counties; and the defendant consented to the...