USA v. Ly et al

U.S. v. Lampkin
3:15-cr-00005-SLG-KFM
Final Report & Recommendation re Motion to Suppress 	Page 1 of 18
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
MURVILLE LAVELLE LAMPKIN,
Defendant.
Case No. 3:15-cr-00005-SLG-KFM
FINAL REPORT AND
RECOMMENDATION
REGARDING DEFENDANT’S
MOTION TO SUPPRESS SEARCH
OF TABLET NOT AUTHORIZED
BY SEARCH WARRANT
(DOC. 491)
I. 	MOTION P RESENTED
Defendant Murville Lavelle Lampkin (Lampkin) moves to suppress the
evidence obtained during law enforcement’s execution of a warrant authorizing the
search of a Samsung cellular phone for evidence of a drug trafficking and money
laundering conspiracy. (Doc. 491; 492). Lampkin argues that the evidence must be
suppressed, because the device searched was a Samsung tablet computer rather
than a cellular phone and therefore outside the scope of the warrant. (Doc. 492 at 2-
6).
The government opposes, arguing that the search of the tablet was within the
scope of the search warrant. (Doc. 497). Observing that the warrant authorized the
search of a cellular phone with a serial number identical to the tablet actually
searched, the government argues that the misidentification of the tablet as a phone
in the warrant amounts to a scrivener’s error that does not affect the legality of the
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search. (Doc. 497 at 5-7). The government further argues that the error was a
reasonable mistake, contending that the tablet was indistinguishable from a
cellphone. (Doc. 497 at 6-7).
The parties have fully briefed the issues, and the Court held an evidentiary
hearing and heard argument. (Doc. 517 hereinafter “Tr.” for Transcript). Lampkin’s
Motion to Suppress is now ripe for this Court’s consideration.
II. 	FACTUAL B ACKGROUND
A. The Seizure of the Samsung Tablet
In May 2014, the Federal Bureau of Investigation’s (FBI) Safe Streets Task
Force (Task Force) and the Anchorage Police Department’s (APD) Special
Assignment Unit began working with a confidential human source (CHS). (Doc.
497-1 at 26). The Task Force obtained information from the CHS, which led them to
suspect that the owner of a nail salon, Toa Dahn Ly (Ly) was engaged in drug
trafficking and money laundering activities. (Id. at 26-30).
In December 2014, law enforcement began to suspect that Lampkin was
involved with Ly’s activities after observing him shake hands with Ly inside Ly’s
nail salon at a time when the nail salon was closed for business. (Id. at 42-44). After
further investigation, the CHS contacted Ly on January 8, 2015, and arranged to
purchase a half ounce of heroin from Ly for $1,300. (Id. at 42-45). Ly directed the
CHS to meet his associate, who was later revealed to be Lampkin, near a
McDonald’s restaurant. (Id. at 45-46). The CHS purchased heroin from Lampkin,
who directed the CHS to contact Ly to arrange future drug transactions. (Id.).
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Based on this, and other information, the Task Force obtained a number of
search warrants for locations suspected to contain evidence related to their
investigation of Ly, Lampkin and other co-conspirators throughout Alaska and the
Seattle, Washington area. (Tr. at 31).
One of the warrants, 3:15-mj-00016-KFM, authorized law enforcement to
search a dwelling on Gaylene Circle, in Anchorage, Alaska, which was believed to be
Lampkin’s residence. (Doc. 497-1 at 1, 43). The warrant authorized law enforcement
to search for evidence of drug trafficking and money laundering, and to seize
cellular phones and computers. (Id. at 1-6). The warrant specified that computers
were not to be searched unless an independent search warrant was obtained. (Id. at
5).
On January 14, 2015, the Task Force executed these warrants. (Tr. at 31-32;
Doc. 497-1). During the execution of the search warrant for Lampkin’s residence,
law enforcement searched a bedroom, and discovered a Samsung device within an
open drawer of a nightstand. (Tr. at 7-9; Doc. 497-2). FBI Special Agent Derek
Espeland (Espeland) testified that the device appeared to be a cellular phone or
some other kind of computer that could contain data. (Id. at 12). Agent Espeland
inspected the device, and discovered a serial number on a label attached
underneath the Samsung logo on the back of the device. (Tr. at 12-15; Doc. 497-4;
Doc. 497-5). The serial number read: S/N RF2F90HHFQY. (Id.).
Agent Espeland placed the device in a sealed bag, which he labeled with the
device’s serial number and a description of the device as a “Samsung.” (Tr. at 11-15,
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34; Doc. 497-8).
B. The Search Warrant Application
As part of his work as a member of the Task Force, APD Officer Eric Smith
(Smith) was in charge of processing the evidence obtained from the January 14,
2015 search warrant executions. (Tr. at 33). As part of his task, Officer Smith was
responsible for obtaining follow-up search warrants for electronic devices seized
during the January 14 searches. (Tr. at 32-33).
On January 27, 2015, Officer Smith applied for a search warrant to search
the Samsung device for evidence of drug trafficking and money laundering
conspiracies. (Tr. at 34; Doc. 497-6). In his application, Smith described the device
as “a Samsung cell phone, serial number RF2F90HHFQY[.]” (Doc. 497-6 at 2).
Smith’s affidavit states that drug traffickers often keep itemized lists of
expenses and receipts related to their criminal activities. (Doc. 497-6 at 17). They
also take photographs or videos of themselves and their co-conspirators with
controlled substances, large amounts of currency, guns and other expensive items.
(Id. at 18). Smith explained that, in his experience, these records, photographs and
videos are often stored in digital format on computers, tablets, smart phones or
other internet capable devices. (Id. at 18, 20). The affidavit also provided a
description of the search of the Gaylene Circle residence, and recounted the facts of
the investigation, which established probable cause to search the Gaylene Circle
address for evidence of drug trafficking and money laundering. (Id. at 21-53
Based on these representations and Officer Smith’s summary of the
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investigation of Lampkin and his co-conspirators, Magistrate Judge Kevin McCoy
issued search warrant 3:15-mj-00031-KFM, authorizing law enforcement to search
the Samsung device, and two other electronic devices seized from the Gaylene Circle
address, for evidence of drug trafficking and money laundering, including records of
phone calls, text messages and address books. (Docs. 492-1; 497-6 at 1, 68).
C. The Execution of the Search Warrant
Officer Smith executed the search warrant for the Samsung device. (Tr. at 36-
37). After turning the device on, Smith used a program called Cellebrite to
download the device’s list of contacts. (Id.). Through Cellebrite, Smith also learned
that the device’s model name was “Samsung Galaxy Tab 4.” (Id. at 43). He then
proceeded to manually review the device, taking screenshots of items of interest.
(Id.).
Throughout the search, Officer Smith believed that the device was a cellular
phone. (See Tr. at 36). His belief was based on the device’s size, the fact that it was
manufactured by Samsung, a company which he understood to be a major
manufacturer of cellular phones, and because the device indicated it was receiving a
4G data signal. (Id. at 34-36, 46). Although the Cellebrite report identified the
device as a “Samsung Galaxy Tab,” he did not consider that the device might in fact
be a tablet computer. (Id. at 46).
At the evidentiary hearing, the government prosecutor stipulated that the
neither the device’s exterior nor the contents of its internal programs contained any
indication that it was a cellular phone. (Id. at 23-24).
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D. Evidence Regarding the Distinctions Between Tablets and Cellular
Phones
At the evidentiary hearing, Agent Espeland testified that tablet computers
and cellular phones are overlapping categories of electronic devices. (Tr. at 21).
Espeland acknowledged that older cellular phones were limited to making
telephone calls. (Tr. at 21). He noted however that new cellular smart phones, such
as those produced by Samsung and Apple, have capabilities similar to tablet
computers, and can access the internet and a variety of other software applications.
(Id. at 21-22). When he handled the Samsung device during the search, Espeland
did not make any assumptions about whether the device was a tablet or phone. (Id.
at 17).
Officer Smith testified that both cellular phones and tablets can be used to
communicate using voice-to-voice, face-to-face and text messaging applications. (Id.
at 40-41). He explained that a program called Skype can be used to make phone
calls using an internet connection. (Id. at 47). Smith stated that in past cases, he
has searched phones that had no call logs. (Id.). In other cases, he has searched
internet capable phones that did not have cellular phone service, but were still
capable of functioning like tablets, in that they could take pictures and connect to
the internet. (Id.).
The Court takes notice, that tablet computers and internet capable smart
phones have many overlapping capabilities. Tablets and smart phones are both
rectangular electronic devices with large touch screens that dominate the front-side
of the devices. Both types of devices can be used for wireless text, voice and video
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communication, to access the internet, and to capture and store pictures and other
data. Further, both tablets and smart phones can connect to the internet using
wireless 3G and 4G networks.
Generally, tablet computers tend to be larger than smart phones, however, as
the government observes in its opposition, some of the larger smart phones on the
market are 7 inches in screen length. (Doc. 497 at 6). For example, Samsung has
released the Samsung Galaxy W, a cellular phone with a 7 inch screen. (Id. (citing
Richard Trenholm, 7-inch Samsung Galaxy W is Samsung’s biggest phone yet (June
2, 2014), https://www.cnet.com/news/7-inch-samsung-galaxy-w-is-samsungs-biggest-
phone-yet/).
E. The Dimensions and Appearance of the Samsung Device
For the reader’s convenience, the Court has attached three pictures of the
device on pages 16-18 of this Report and Recommendation as Appendices A-C. The
pictures were originally submitted by the government in support of its opposition at
Dockets 497-3, 497-4 and 497-9, and were entered into evidence at the evidentiary
hearing. (Tr. at 28). Appendix A (Doc. 497-3) depicts the front of the device when
turned off, while Appendix B (Doc. 497-4) depicts the back of the device. Appendix C
depicts the device’s home screen when turned on. (Doc. 497-9).
Upon casual review, the device appears to be either a small tablet computer
or a large smart phone. The government represents it is approximately 7 inches in
size, and presented the photo in Appendix A. (Doc. 497 at 6). At the evidentiary
hearing, the Court had an opportunity to view the device. The Court concludes that
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the device’s screen looks to be roughly 7 inches in screen length. When turned on,
the device’s home screen resembles the home screen of either a tablet or a smart
phone. While it appears to have a messaging application at the bottom of the home
screen, it does not appear to have a phone application.
III. 	LEGAL A NALYSIS
A. Suppression Is Inappropriate Because the Warrant Identified the
Tablet With Sufficient Specificity
Lampkin argues that the evidence seized from the Samsung tablet must be
suppressed because the warrant failed to describe the tablet with sufficient
specificity, and, as a result, the search of the tablet was outside the scope of
warrant, which authorized the search of a Samsung cellphone, and not a tablet.
(Doc. 492 at 2-6). However, as the government notes in its opposition, although the
warrant and Officer Smith’s application incorrectly refers to the device as a
Samsung cellphone, the warrant also refers the device by its correct make,
Samsung, and its correct serial number, RF2F90HHFQY. (Doc. 497 at 5).
Having reviewed the parties’ arguments and applicable law, the Court finds
that this error amounts to a technical misstatement, which does not render the
warrant insufficiently particular and does not require suppression of the evidence
seized from the tablet.
The Fourth Amendment requires that warrants describe the place or objects
to be searched with particularity. See United States v. Mann, 389 F.3d 869, 877–78
(9th Cir. 2004). The description must be specific enough to enable the executing
officer to reasonably identify the things authorized to be searched and seized. Id.
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The particularity requirement guards against unconstitutional general, exploratory
searches. Id. It also ensures that the issuing magistrate is fully apprised of the
scope of the search and can thus accurately determine whether the search is
supported by probable cause. Id.
In determining whether a warrant is sufficiently particular in its description
of items to be searched, courts focus on: “(1) whether probable cause exists to seize
all items of a particular type described in the warrant, (2) whether the warrant sets
out objective standards by which executing officers can differentiate items subject to
seizure from those which are not, and (3) whether the government was able to
describe the items more particularly in light of the information available to it at the
time the warrant was issued.” Mann, 389 F.3d at 878. Additionally, courts consider
(1) whether the description enables officers to identify the place or object with
reasonable effort, and (2) whether there is any probability that the officers might
mistakenly search an area or object outside of the scope of the warrant. See id. at
876; see also United States v. Lora-Solano, 330 F.3d 1288, 1293 (10th Cir.2003);
United States v. Pelayo-Landero, 285 F.3d 491, 496 (6th Cir.2002); United States v.
Vega-Figueroa, 234 F.3d 744, 756 (1st Cir.2000); Velardi v. Walsh, 40 F.3d 569, 576
(2d Cir.1994); United States v. Gilliam, 975 F.2d 1050, 1055 (4th Cir.1992); United
States v. Clement, 747 F.2d 460, 461 (8th Cir.1984); United States v. Avarello, 592
F.2d 1339, 1344 (5th Cir.1979).
Under this analysis, courts have consistently concluded that technical
inaccuracies in a warrant’s description of the property to be searched do not require
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suppression of the evidence where there appears to be no real possibility that law
enforcement would mistakenly search the wrong premises or items.
For example, in United States v. Mann, the Ninth Circuit concluded that
suppression of evidence seized from a campsite was not appropriate where the
warrant incorrectly described the campground to be searched. 898 F.3d at 872, 876-
877. It was described as located “up Cherry Creek Road on the West Fork of Lower
Deer Creek, T2S, R14E, NW 1/4 of Section 21, Sweet Grass County, Montana,
occupied by James Francis Pollender[,]” when the camp was in fact located on
Upper Deer Creek. Id. The court reasoned that, despite the misstatement, the
warrant was sufficiently particular and suppression was inappropriate because
Cherry Creek was the only road in Section 21 of the county, and the road only led to
Upper Deer Creek. Id. at 877. Further the two officers executing the warrant were
personally familiar with the campsite.
Similarly, in United States v. Turner, the Ninth Circuit upheld the search of
a home pursuant to a warrant that contained an incorrect street address. 770 F.2d
at 1511. The warrant authorized the search of “2756 Mountain View Drive[,]” when,
in fact, the house the officers intended to search and actually searched was 2800
Mountain View Drive. Id. at 1509. Despite the inaccuracy, the Ninth Circuit upheld
the warrant as sufficiently particular because the verbal description of the house
was specific and accurate, and the officers executing the warrant were personally
familiar with the location. Id. at 1511. Additionally, the Ninth Circuit noted that
the inclusion of the incorrect address was a reasonable mistake, in light of the fact
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that there was no street number affixed to the house, and the driveway to the house
had three mail boxes for house numbers 2800, 2810 and 2756. Id. at 1508, 1511.
In this case, the warrant described the device as “a Samsung cell phone,
serial number RF2F90HHFQY,” (Doc. 492-1 at 3), while the device actually
searched was a Samsung tablet, serial number RF2F90HHFQY, (Tr. at 12-15; Doc.
497-4; Doc. 497-5).
Despite the technically inaccurate description, the warrant was sufficiently
particular because it enabled Officer Smith to easily identify the object to be
searched. Mann, 389 F.3d at 876. The device in question had a Samsung logo on the
back along with a serial number matching the number listed in the warrant. (See
Appendix B).
Accordingly, it does not appear that Lampkin’s Fourth Amendment rights
were in anyway prejudiced by the inaccuracy of the words describing the tablet. As
Lampkin’s counsel conceded at oral argument, Magistrate Judge McCoy’s decision
would likely not have been affected had he known that the device to be searched
was a tablet, and not a cellular phone. (Tr. at 53).
Likewise, based on the information known to Officer Smith at the time he
applied for the warrant, it was not unreasonable for him to assume that it was a
cellular phone. Mann, 389 F.3d at 878. The device appears to be either a small
tablet, or a large cellular smart phone, and, as Officer Smith noted, Samsung is a
major manufacturer of cellular phones. There is nothing on the exterior of the phone
indicating whether it is a tablet or a cellular phone. See Appendices A-B.
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Finally, the Court notes that, as opposed to the inaccurate descriptions of
places to be searched at issue in Tuner and Mann, here, there was no possibility
that the rights of a third party could be infringed due to the inaccuracy in the
warrant. The device, regardless of whether it was a tablet or cellular phone, was
seized pursuant to a lawful search warrant executed on Gaylene Circle. For this
same reason, there was no possibility that the inaccuracy might render the warrant
an unconstitutional, general warrant, authorizing law enforcement to rummage
around another person’s belongings. Mann, 389 F.3d at 877. The belonging in
question had already been identified and seized as an electronic device obtaining
potential evidence.
This Court concludes that the warrant to search the Samsung tablet was
sufficiently particular and suppression of the evidence is inappropriate in this case
because: (1) probable cause was established to search the electronic device
regardless of whether it was a tablet or a cellular phone; (2) there was no real
possibility that Officer Smith could have mistakenly searched the wrong device; and
(3) there is no prejudice to the defendant or any third party.
B. Officer Smith Made a Reasonable Mistake in Misidentifying the
Device
At oral argument, Lampkin further argued that the evidence must be
suppressed because Officer Smith should have ceased searching the tablet and
applied for a corrected warrant upon realizing that the suspected phone was in fact
a tablet. (Tr. at 50). The Court is not aware of, and Lampkin has provided no
authority holding that law enforcement is required to obtain a second warrant upon
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realizing that the first warrant contained an inaccurate description of the property
to be searched.
In Maryland v. Garrison, the Supreme Court upheld the search of the entire
third floor of an apartment building when law enforcement reasonably believed that
the floor contained only one apartment but it was later discovered to contain two
units. 480 U.S. 79, 80-89 (1987). Based on information obtained from an informant,
surveillance of the building and utility company records, law enforcement initially
concluded that the third floor of the building contained a single unit, which was
believed to belong to a suspect named McWebb. Id. at 80-81. With that
understanding, they obtained a warrant to search McWebb and his apartment,
described as the third floor of the building. Id. at 81-82.
While executing the warrant, the officers discovered that the third floor
contained two apartment units, and immediately discontinued their search. Id. at
81. However, before realizing their mistake, the officers had entered an apartment
occupied by the defendant, Garrison, and discovered heroin, cash and drug
paraphernalia inside. Id.
The Court held that the search of Garrison’s apartment was lawful,
concluding that the discovery of facts, unknown at the time the warrant was issued,
did not retroactively invalidate the warrant. Id. at 86-89. The Court found that the
officers’ mistake was reasonable considering their prior efforts to ascertain and
identify the place to be searched, and, as a result, their conduct was not unlawful
under the Fourth Amendment. Id. at 88-89. The Court stated in dicta that the
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officers were required to discontinue the search upon discovering that they might
enter into an apartment erroneously included in the warrant. Id. at 87.
Here, the Court finds that, like the officers in Garrison, Officer Smith
reasonably mistook the Samsung tablet for a Samsung cellular phone. The Court
finds that Smith testified honestly that he believed, at the time of the search, that
the device was a cellular phone based on its make and its connection to a 4G data
network, a type of wireless internet connection commonly used by cellular phones.
As noted, supra, there was no indication on the outside of the device that it was not
a phone.
The Court also finds that Officer Smith testified credibly when he said that
he never considered that the device might be a tablet at any point during the
search. (Tr. at 46). However, assuming, arguendo, that Officer Smith’s mistake
became unreasonable once he discovered the device was a “Samsung Galaxy Tab”
and failed to find a phone application on the home screen, the Court nevertheless
concludes that suppression would be unwarranted. The instant case is
distinguishable from Garrison, in that there was never any chance that either the
rights of Lampkin or any third party could be infringed by the search of the tablet.
In contrast to the two apartments occupied by two different individuals in Garrison,
the object of the search—the Samsung device—had been seized from a residence
occupied by Lampkin. There was no chance that a third party’s rights were
infringed from the search of a device seized pursuant to a lawful warrant
authorizing the search of the Gaylene Circle residence. See Section III(A), supra.
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IV. 	CONCLUSION
For the foregoing reasons, the Court recommends that Lampkin’s Motion to
Suppress (Doc. 491) be DENIED.
DATED this 5 th day of October, 2016, in Anchorage, Alaska.
/s/Deborah M. Smith
Chief United States Magistrate Judge
Pursuant to the Judge Gleason’s order at Docket 513, the instant report and
recommendation has been filed as a final report and recommendation. Any party
seeking to object to this proposed finding and recommendation shall file written
objections with the Clerk of Court no later than CLOSE OF BUSINESS, October
11, 2016. Failure to object to a magistrate judge=s findings of fact may be treated as
a procedural default and waiver of the right to contest those findings on appeal.
Miranda v. Anchondo, et. al, 684 F.3d 844 (9th Cir. 2012). The Ninth Circuit
concludes that a district court is not required to consider evidence introduced for the
first time in a party=s objection to a magistrate judge=s recommendation. United
States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not
exceed five (5) pages in length, and shall not merely reargue positions presented in
motion papers. Rather, objections and responses shall specifically designate the
findings or recommendations objected to, the basis of the objection, and the points
and authorities in support. Response(s) to the objections shall be filed on or before
CLOSE OF BUSINESS, October 13, 2016. The parties shall otherwise comply
with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice of
appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the
district court’s judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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A PPENDIX A
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A PPENDIX B
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Appendix C
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