United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
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.
Defendant's Motion in Limine to exclude hearsay
testimony (Dkt. 97).
of the parties' representations at the hearing, the court
finds this motion is moot.
Defendant's Motion in Limine to admit evidence of
mandatory minimum sentence (Dkt. 98).
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.
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
Defendant's Motion to Suppress search of computers,
cell phones, and iCloud accounts (Dkt. 99).
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.
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.
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 ...