UNITED STATES OF AMERICA v. SAMUEL PRATT
US Court of Appeals for the Fourth Circuit, Diaz, February 8, 2019,
SSW – A warrant for a cell phone was unreasonable where it wasn’t obtained for 31 days after seizure

Facts:
FBI agents in South Carolina arranged a date on Backpage.com with an underage prostitute, RM, at an area hotel. The agents confronted RM, who told them that Samuel Pratt brought her across state lines to conduct prostitution. RM said that she had texted “nude” photographs of herself to Pratt.
Pratt was found in the parking lot of the hotel and was asked whether he had nude photos of RM on his phone. Pratt said, “yes, I’ve got pictures of her on the phone.”
The agents seized Pratt’s phone, but didn’t get a warrant to search the phone for 31 days. When the phone was searched, agents found nude images of RM and incriminating text conversations.
Pratt was charged with human trafficking, possession of child pornography, and related charges.
From jail, Pratt made numerous phone calls to his mother to coordinate continued prostitution operations. He also contacted RM and repeatedly told her not to testify or cooperate.
Prior to trial, Pratt moved to suppress the evidence found on the cell-phone, arguing that it was unreasonable for the FBI to hold the phone for 31 days before seeking a search-warrant. The trial judge overruled Pratt and allowed the photographs into evidence.
By the time of trial, US Marshals were unable to locate RM. Several women testified that Pratt would beat any prostitute – including RM – whom he considered disobedient.
At trial, RM’s statements to the FBI were allowed into evidence because the trial judge found that Pratt was responsible for intimidating her and causing her to be unavailable.
Pratt was convicted and appealed, arguing that the delay in getting a warrant for the cell-phone made the seizure unreasonable and that RM’s statements should not have been allowed at trial without her testifying.

Held: The Court held that the cell-phone pictures should have been suppressed based on the unreasonable delay in obtaining the search-warrant, but that Pratt’s intimidation allowed RM’s statements to the FBI into evidence.

Cell-Phone – While a cell-phone can be seized incident to an arrest, it cannot be searched unless the officer has a search-warrant or an exception to the warrant requirement (such as exigent circumstances)

Search-Warrant Timing – Once a container has been seized, police must obtain a search-warrant within a “reasonable” amount of time.

Search-Warrant Timing – Police have a “reasonable” period of time to obtain a warrant based in part on how diligently they work toward obtaining it. Whether or not the timing is reasonable may depend in part on:
– The complexity of the investigation
– Resources available to draft/obtain the warrant
– Whether or not the suspect consented
– Whether some or all of the device was returned to the suspect while a warrant was being sought

From the Case: “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.”

From the Case: “Simply put, the agents here failed to exercise diligence by spending a whole month debating where to get a warrant.”

Seizure – Evidence of a crime can generally be retained by police indefinitely

Seizure – A cell-phone is not considered “evidence” of a crime if it only holds files that are themselves evidence.

From the Case: The cell-phone does not have “independent evidentiary value, like a murder weapon. Only the phone’s files had evidentiary value. The agents could have removed or copied incriminating files and returned the phone… But here, the phone itself is evidence of nothing.”

Practice Note: If you are involved in a case where information about HOW information was sent/received is relevant (when/how a text-message was sent/received, when a screenshot was taken, etc), the phone itself could have that evidence. The phone is not only a container, it also contains information about what’s inside of it. Where relevant, articulate the difference between information that you need about files (held by the phone) and the individual files that you think are held in the phone (pictures, etc).

From the Case: Pratt had an undiminished possessory interest in the cellphone—he didn’t consent to the seizure and he wasn’t allowed to retain any of the phone’s files. Given Pratt’s undiminished interest, a 31-day delay violates the Fourth Amendment where the government neither proceeds diligently nor presents an overriding reason for the delay.

Child Pornography – It is a crime to knowingly possesses child pornography that has been sent/received/produced using a computer

Child Pornography – “Child pornography” means any visual depiction of a minor engaging in sexually explicit conduct or where the image has been made to look like a minor is engaging in sexually explicit conduct. This “sexually explicit conduct” involves real or simulated—
– sexual intercourse (including oral or anal sex)
– masturbation
– sexual abuse
– lascivious (sexual) exhibition of the genital/anal/pubic area

From the Case: In each statement, the photos are described solely with the generic terms “naked” or “nude.” Some “naked” or “nude” photos are lascivious and display the genitals or pubic area. But many photos an ordinary viewer would describe as “naked” or “nude” are not lascivious or do not depict the genitals or pubic area. Thus, without more, we can’t infer that the photos contain sexually explicit conduct as defined by statute.

Hearsay – An out-of-court statement will not generally be allowed in evidence at trial to prove the truth of the statement.

Hearsay – Exception – If the witness can’t testify at trial because the defendant wrongfully caused him/her to be unavailable, then an out-of-court statement made by that witness can be used at trial against the defendant.

From the Case: Pratt’s calls from jail “caused RM’s unavailability. Standing alone, the calls sound like veiled threats. But the threats become obvious against the backdrop of the graphic testimony of several women at trial who detailed how Pratt would beat prostitutes— including RM—whom he considered disobedient. RM would have received the message that Pratt would hurt her in the future if she disobeyed Pratt and testified against him.” Therefore, Pratt caused RM to not be available at trial and the “district court did not err by admitting an agent’s recollection of RM’s
statements.”