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United States v. Henson

United States District Court, D. Kansas

June 22, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
STEVEN R. HENSON, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE.

         This matter came before the court on June 2, 2017, for a hearing on pending motions. The court ruled orally on several of the motions at the hearing. This written memorandum will supplement the court's oral rulings.

         1. Defendant's Motion in Limine to exclude hearsay testimony (Dkt. 97).

         In view of the parties' representations at the hearing, the court finds this motion is moot.

         2. Defendant's Motion in Limine to admit evidence of mandatory minimum sentence (Dkt. 98).

         Defendant argues the jury should be informed of the mandatory twenty-year minimum sentence applicable to Count 17 (21 U.S.C. § 841(b)(1)(C)), because the traditional rule barring such evidence is “anachronistic” when a mandatory sentence in involved. Dkt. 98 at 3. He contends that 1 U.S.C. § 112 makes such evidence admissible and that jurors must “be allowed to read for themselves the text of the statute on which they are asked to find guilt.” Id. at 4.

         The Supreme Court and the Tenth Circuit have both stated that when a jury has no sentencing function, the jury should reach a verdict without regard to what sentence may be imposed. Shannon v. United States, 512 U.S. 573, 579 (1994); United States v. Greer, 620 F.2d 1383, 1384 (10th Cir. 1980) (“The authorities are unequivocal in holding that presenting information to the jury about possible sentencing is prejudicial.”). The court will therefore deny the motion and will exclude such evidence pursuant to Fed.R.Evid. 403. See Shannon, 512 U.S. at 579 (“providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion”). The statute cited by defendant (1 U.S.C. § 112) in support of admission of this evidence is unavailing. That provision only makes clear that U.S. Statutes at Large are proper evidence of the laws contained therein; it says nothing about whether admission of such evidence is relevant or proper in a particular case.

         3. Defendant's Motion to Suppress search of computers, cell phones, and iCloud accounts (Dkt. 99).

         Defendant moves to suppress evidence found in computers and cell phones searched by the Government pursuant to judicial warrants. He also challenges a search of iCloud accounts conducted by Apple pursuant to a court order. Defendant argues that warrants authorizing such searches “must not only specify the information to be seized with particularity in addition to the probable cause to do so, but also must sufficiently describe the search methodology the government plans to employ to lawfully execute the search.” Dkt. 99 at 2 (citing In re Nextel Cellular Telephone, No. 14-MJ-8005-DJW, 2014 WL 2898262 (D. Kan. June 26, 2014). Defendant contends the computers and phones “were separately examined all absent any colorable limits of particularity.” Dkt. 99 at 2. He argues that the warrants authorized prohibited general searches because they failed to place any limits on the scope of the searches.

         The Tenth Circuit recently summarized the relevant law in finding that a warrant authorizing a search of a cell phone failed to meet the particularity requirement of the Fourth Amendment:

In protecting against unreasonable searches and seizures, the Fourth Amendment mandates two requirements for search warrants: a warrant must be supported by probable cause, and it must describe with particularity “the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV; Groh v. Ramirez, 540 U.S. 551, 557, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). Because the Fourth Amendment by its terms “requires particularity in the warrant, not in the supporting documents, ” an application for a warrant which meets the particularity requirement “does not save the warrant from its facial invalidity.” Id. (emphasis removed). And “[a]lthough an executing officer's knowledge may be a curing factor, ” knowledge alone is insufficient to satisfy the particularity requirement. United States v. Williamson, 1 F.3d 1134, 1136 (10th Cir. 1993).
In the context of cell phones and cell phone data, the Supreme Court recently held in Riley v. California that a warrant is generally required to search digital information on a cell phone, even when the phone is seized incident to a lawful arrest. __U.S. __, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014). We have not yet had occasion to address the effect of Riley, but we have previously recognized the importance of the particularity requirement as it pertains to searches of personal computers, because computers “can contain (or at least permit access to) our diaries, calendars, files, and correspondence” and therefore may be “especially vulnerable to a worrisome exploratory rummaging by the government.” United States v. Christie, 717 F.3d 1156, 1164 (10th Cir. 2013).
We have thus drawn a “recognizable line” in considering how much particularity is required for computer searches. Id. On the one hand, we have invalidated warrants authorizing computer searches “where we could discern no limiting principle: where, for example, the warrant permitted a search of ‘ “any and all” information, data, devices, programs, and other materials, ' ” or “all computer and non-computer equipment and written materials in [a defendant's] house.” Id. at 1164-65 (first quoting United States v. Otero, 563 F.3d 1127, 1132-33 (10th Cir. 2009); then quoting Mink v. Knox, 613 F.3d 995, 1011 (10th Cir. 2010)). On the other hand, we have stated, “warrants may pass the particularity test if they limit their scope either ‘to evidence of specific federal crimes or to specific types of material.' ” Christie, 717 F.3d at 1165 (quoting United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005) (alteration incorporated)).
This approach can be extended to searches of cell phones, which the Supreme Court has characterized as “minicomputers that also happen to have the capacity to be used as a telephone.” See Riley, 134 S.Ct. at 2489. And here, we have little difficulty concluding the warrant on which Deputy Wilson relied to search Russian's phones was invalid for lack of particularity [footnote omitted]. Although the application requested authorization to search the two Samsung cell phones law enforcement had seized at the time of Russian's arrest and certain data that might be found on them, the warrant itself merely authorized a search of Russian's residence and seizure of any cell phones found inside. The warrant did not identify either ...

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