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United States v. Musgraves

United States District Court, D. Kansas

December 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA ALEXANDER MUSGRAVES (01), Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         On April 6, 2017, federal law enforcement officials arrested defendant Joshua Musgraves outside the Stormont Vail Hospital in Topeka, Kansas on suspicion that he had committed several robberies in the area. Just before he left the hospital and was arrested, Mr. Musgraves gave his wireless phone to Pami Hubbard's child so he could play with it. Ms. Hubbard and Mr. Musgraves have a young daughter together, but she was not the child allowed to play with Mr. Musgraves's phone. After federal officials arrested Mr. Musgraves, someone placed the phone inside a bag containing the belongings of Mr. Musgraves and Ms. Hubbard's daughter and took the bag to Carrie Holt's home. Ms. Holt is Mr. Musgraves's grandmother.

         The current dispute arose when law enforcement officials removed Mr. Musgraves's phone from the child's bag and searched it. On October 23, 2017, Mr. Musgraves filed a Motion to Supress any evidence found on his phone (Doc. 29). Mr. Musgraves also filed a Motion to Sever Counts on October 24, 2017 (Doc. 30). The court held an evidentiary hearing on November 17, 2017. The court has considered the parties' briefs and evidence, and now is prepared to rule on both motions.

         I. Factual Background[1]

         On April 6, 2017, federal law enforcement officials arrested Mr. Musgraves on a series of robberies in Lawrence and Topeka, Kansas. Just before they arrested him, Mr. Musgraves gave his phone to Pami Hubbard's young son.[2] At some point after his arrest, an unidentified person placed the phone in a pink bag and took the bag-with the phone still inside it-to the home of Mr. Musgraves's grandmother, Carrie Holt. In addition to the phone, this bag contained things used by Mr. Musgraves and Ms. Hubbard's young daughter.

         Hours after Mr. Musgraves's arrest, FBI Task Force Officer Patrick Salmon interviewed Ms. Hubbard. He asked her about Mr. Musgraves's phone. She advised him that Mr. Musgraves's phone was in their daughter's bag and the bag was at his grandmother's house. When Officer Salmon asked to search the bag for the phone, Ms. Hubbard did not object.[3] The officials then went to the house occupied by the grandmother. Once they arrived there, law enforcement explained why they were there and asked for her consent to search the house for the bag. Ms. Holt signed a form explicitly consenting to a search of her house.[4] Ex. 2.

         Mr. Musgraves had lived at his grandmother's house until three months before the search on April 6. And when the search was conducted, Mr. Musgraves still visited and, on occasion, slept in his grandmother's home. In fact, during their search of the grandmother's home, law enforcement officers found some of Mr. Musgraves's clothes there. The officers also found the pink bag and inside it, Mr. Musgraves's phone.

         Then Topeka Police Department Detective Matt McClimans requested a search warrant from Judge David B. Debenham of the District Court of Shawnee County, Kansas. In his application for the search warrant, Detective McClimans asserted that Mr. Musgraves had committed several robberies in the area. And, Detective McClimans opined:

Through my training and experience[, ] I know that individuals commonly use their cellular telephones to communicate with other individuals through various means to include but not limited to voice calls, text messages, video calls, video messages, emails, instant messages, picture messages, and voice mails. I also know through my training and experience that individuals engaged in criminal activities will use cellular telephones and other mobile devices to communicate with other individuals involved in these illegal activities. These individuals will use cellular telephones in both the planning and commission of their various criminal activities. They will also use cellular telephones to assist in the furtherance of their crimes after the fact to include evading arrest and/or punishment for the crimes they have committed. Often times individuals engaged in illegal activities will use the many capabilities of their cellular phones to document their crimes to include but not limited to photographs and/or videos of themselves or others committing said crimes.

Ex. 5 at 6. Judge Debenham granted the request and issued the search warrant. His warrant authorized a search of Mr. Musgraves's phone for:

Text messages, phone logs, picture[s], videos, audio files, emails, instant messages, contact lists, any and all documents that mention, refer to, depict, or in any manner relate to any of the [robberies] or [Mr. Musgraves], any other form of documentation or electronic data indicating the owner and or controlling party of said property, any and all other files and electronic data.

Ex. 6 at 2.

         The Topeka Police Department later searched the phone and produced a forensic digital image. This image permitted officers to prepare an extraction report, which the Topeka officers shared with federal law enforcement officials. This report contained, among other things, cell tower data, GPS data, location data, search history, and internet browsing history (collectively known as “location and web history data”).

         On May 3, 2017, the Grand Jury returned a superseding indictment, charging Mr. Musgraves with 13 counts (Doc. 12). Counts 1 and 2 charge Mr. Musgraves with robbery of Plato's Closet on January 6, 2017. Counts 3 and 4 charge him with robbing a KFC on January 20, 2017. Counts 5 and 6 charge him with robbery of a Burger King on March 23, 2017. Count 7 charges him with robbing a McDonald's on March 30, 2017. Counts 8 and 9 charge him with robbery of a Subway on April 3, 2017. Counts 10 and 11 charge him with robbing a Wing Stop on April 4, 2017. And, Counts 12 and 13 accuse Mr. Musgraves of robbing the Denison State Bank on December 10, 2016.

         II. Discussion

         A. Motion to Suppress

         1. Mr. Musgraves's Standing[5]

         As a preliminary matter, the government argues that Mr. Musgraves has no standing to challenge the search of the bag or his grandmother's home. “[A] defendant raising a Fourth Amendment challenge must first demonstrate that he has standing to object to the search.” United States v. Poe, 556 F.3d 1113, 1121 (10th Cir. 2009) (citing United States v. Rubio-Rivera, 917 F.2d 1271, 1274 (10th Cir. 1990)). To have standing to challenge a search, a defendant must demonstrate that he has a subjectively and objectively reasonable expectation of privacy. Id. (quoting United States v. Rhiger, 315 F.3d 1283, 1285 (10th Cir. 2003)).

         Mr. Musgraves argues that he has standing to challenge law enforcement's search of his grandmother's home because he had lived at his grandmother's home until a few months before the search. The government responds that Mr. Musgraves does not have standing to contest the search of this home because he did not maintain a stable residence there. “An individual does not have to be ‘settled' at a location to have a reasonable expectation of privacy; a simple overnight guest has Fourth Amendment standing.” Id. at 1122. In addition, social guests have an objectively reasonable expectation of privacy in the home of another. Rhiger, 315 F.3d at 1287 (holding that defendant had standing to challenge the search of his friend's home when he slept in the home a few times a week, he left receipts there, he regularly stayed in the home during the day, and he felt comfortable entering the home unannounced to take naps there); see also Poe, 556 F.3d at 1122 (holding that defendant had standing to challenge the search of another's home when he previously had lived in the home, had a key to it, and was allowed to stay there when the owner was not present).

         Mr. Musgraves's situation is similar. While he no longer stayed at his grandmother's home when the search was conducted, he still visited there occasionally and he kept clothes there. And Ms. Hubbard took his belongings to the grandmother's home after federal officials arrested him. While his grandmother's home was not Mr. Musgraves's permanent residence, that is not a prerequisite to standing. See, e.g., Poe, 556 F.3d at 1122.

         Mr. Musgraves likewise has standing to contest the search of his daughter's bag. Ms. Hubbard described the bag as a place where Mr. Musgraves kept his daughter's belongings and needs for the day. It is reasonable for a person to believe that others will not search his infant daughter's bag. See United States v. Montano, No. B-11-482, 2011 WL 13157358, at *2 (S.D. Tex. Sept. 14, 2011) (allowing defendant to challenge a government search of his child's diaper bag because defendant packed the bag and also placed a few of his belongings in the bag). Mr. Musgraves thus has standing to challenge both the search of his grandmother's home and the bag used for his daughter's belongings.[6]

         2. Consent to Search

         Mr. Musgraves argues that law enforcement officers illegally searched his child's bag. The government argues that Mr. Musgraves's grandmother and Ms. Hubbard had authority to consent to search the bag. “A search does not require a warrant or probable cause if it is conducted pursuant to consent.” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (first citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); then citing United States v. Romero, 749 F.3d 900, 905 (10th Cir. 2014)). “The government has the burden of proving the effectiveness of a third party's consent.” United States v. Salinas-Cano, 959 F.2d 861, 863 (10th Cir. 1992). Mr. Musgraves solely argues that neither Ms. Hubbard nor his grandmother had the authority to consent to a search of the bag. Mr. Musgraves does not challenge whether Ms. Hubbard or his grandmother actually consented to search the bag.

         “An officer executing a search can rely on a third party's consent if that party has actual or apparent authority” to consent to a search of the property. United States v. Romero, 749 F.3d 900, 905 (10th Cir. 2014). A third party has actual authority when she mutually uses the property by virtue of joint access to or control of the property. Id. A third party has apparent authority when a reasonable officer would believe the third party had actual authority to consent. Id. Here, the government argues, Mr. Musgraves's grandmother had actual authority to consent to a search of her house and the bag, and Ms. Hubbard had authority to consent to a search of the bag. Mr. Musgraves argues that he alone owned the bag and thus neither Ms. Hubbard nor his grandmother possessed authority to confer consent to a search the bag.

         The court first addresses whether Ms. Hubbard could consent to the bag's search. When the owner of property permits another person to use the property, the owner assumes the risk that the non-owner might give law enforcement consent to search the property. United States v. Bass, 661 F.3d 1299, 1305 (10th Cir. 2011) (quoting United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)); see also United States v. Lee, 972 F.Supp. 1330, 1352 (D. Kan. 1997) (“It ...


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