USA v. Lombardi

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA,
v.
GREGORY LOMBARDI,
Defendant.
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C.A. No. 1:23-cr-00102-MSM-AEM
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
Before the Court is the defendant Gregory Lombardi’s Motion to Suppress
Evidence and Statements (ECF No. 20). Mr. Lombardi seeks suppression of physical
evidence and statements made by him to police and federal agents during their
execution of a search warrant to seize evidence of crimes involving the possession and
distribution of child pornography.
Id. at 1. He argues that this evidence was obtained
in violation of his rights under the Fourth, Fifth, and Sixth Amendments.
	Id.;
see
ECF No. 49. In response, the United States contends that all physical evidence was
either obtained under the warrant itself or an exception to the warrant requirement,
and that Mr. Lombardi’s statements were made following a valid waiver of his Fifth
and Sixth Amendment rights. (ECF Nos. 22, 46.) For the following reasons, the Court
DENIES Mr. Lombardi’s Motion.
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I. 	BACKGROUND
This case stems from an international investigation into an anonymous
individual 	suspected 	of 	plotting 	to 	abuse 	children. 	(ECF 	No. 	47-2 	at 	12.)
Investigators tracked internet accounts associated with this individual to an account
on Telegram, an encrypted messaging application.
Id. at 13–14. 	Undercover officers
contacted that account through Telegram and attempted to lure its user to an in-
person meeting, using as bait the opportunity to abuse a (fictitious) child.
Id. at 15–
16; 64–67. 	During this exchange, the Telegram account sent child pornography to
the undercover officers.
Id. at 16.
Through the IP address associated with the Telegram account, police were able
to track the user to a Rhode Island address.
Id. at 14. Police subsequently identified
three individuals associated with that address: Mr. Lombardi’s father-in-law, his
husband, and his brother-in-law.
Id. at 17, 23. Police did not identify Mr. Lombardi
as associated with the address during this initial investigation.
Id. at 113–18. Based
on their findings, police began preparing an affidavit for a warrant to search the
address for electronic devices containing evidence related to the possession or
distribution of child pornography.
Id. at 16–20.
After the Telegram user backed out of an arranged meet-up, police proceeded
by obtaining the search warrant.
	Id. at 67–68;
see ECF No. 30. 	This warrant
authorized police to search the “entire property” at the address, as well as the persons
of the three individuals identified by police as associated with the address if those
individuals were present at the address at the time of the search warrant’s execution.
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(ECF No. 30 at 3.) The warrant permitted police to seize and to search the contents
of, among other things, “cellular telephones” at the subject premises.
	Id. at 38–44.
The search warrant did not expressly authorize a search of Mr. Lombardi’s person,
given that his association with the address was unknown to police at the time the
warrant issued.
See id. at 3;
see also ECF No. 47-2 at 114–17.
Police then executed the search warrant. 	(ECF No. 47-2 at 20.) 	Inside the
residence, police encountered five individuals, including two individuals named in the
warrant and Mr. Lombardi.
Id. at 23. Mr. Lombardi was found in a bedroom in the
residence, apparently manipulating something with his left hand, outside the officer’s
line of sight due to Mr. Lombardi’s “bladed” position with respect to the officer.
Id. at
160–62. Police ordered Mr. Lombardi to raise his hands and escorted him to a dining
room table, where an officer began to frisk him for weapons.
Id. at 162–64.
At an evidentiary hearing on the present Motion, the frisking officer testified
about what followed:
Q. 	And what happened next?
A. 	While performing a check of the waistband area I could hear an
audible noise coming from Mr. Lombardi’s left-hand side.
Q. 	What did you do?
A. 	I asked him what was in his pocket.
Q. 	Did Mr. Lombardi respond?
A. 	He did.
Q. 	What did he say?
A. 	He advised that it was a phone.
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Q. 	And what did you say next?
A. 	I instructed him to remove the phone from his pocket.
Q. 	And what happened?
A. 	He complied. He took the phone out of his pocket and handed it
to me.
Q. 	Now, why did you tell him to show you what was in his pocket?
A. 	That was the same side that was bladed away from me; but I could
hear that there was a noise, so in order to confirm what he was
saying I asked him to remove it from his, whatever the object was
from his pocket.
Q. 	And what did Mr. Lombardi do with the phone?
A. 	He handed it to me.
Id. at 163–64.
The officer took Mr. Lombardi’s phone, which was unlocked, and placed it on a
hutch on the wall in the dining room.
	Id. at 28; 164–65. 	Another officer then
conducted a “preview” of the phone and discovered the messages between the
Telegram account and the undercover officers, indicating to police that they had
located the device they were looking for.
	Id. at 28–29. 	Around that time, during a
call with the Assistant United States Attorney (“AUSA”) assigned to the case, the
AUSA instructed one of the officers to cease any further search of the phone’s
contents.
	Id. at 98–101. 	The officers did not, however, return the phone to Mr.
Lombardi.
Id. at 101.
Officers then interviewed Mr. Lombardi.
	Id. at 29;
see ECF No. 20-2. At the
outset of that recorded interview, the officers told Mr. Lombardi that he was not free
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to leave. 	(ECF No. 20-2 at 3.) 	The following exchange then occurred as the officer
handed Mr. Lombardi a
Miranda waiver form:
Officer: 	So as far as that, we’d like to talk to you. As part of
that, we need to make you aware of your rights, so
I’m just going to give you this form right here, if you
can take a look at it.
Mr. Lombardi: 	Yes. Okay.
Officer: 	Okay.
Mr. Lombardi: 	Um, do you want me to initial the sides?
Officer: 	Yeah, we—yeah, and then right up here.
Mr. Lombardi: 	Okay.
Id. at 3–4. 	After a brief exchange regarding the date and proper location for
signatures and Mr. Lombardi’s execution of those signatures, discussion of the waiver
concluded as follows:
Officer: 	All right. And you write and understand?
Mr. Lombardi: 	Yes.
Id. at 4. Regarding Mr. Lombardi’s swift signature of the
Miranda wavier, the officer
conducting the interview later explained that “[a]s soon as [I] handed it to him, he
looked at it and asked where to sign.” (ECF No. 47-2 at 32.)
The interview itself lasted about seven minutes.
	Id. at 35. 	During the
interview, the officers asked Mr. Lombardi whether he lived at the address, which he
denied. 	(ECF No. 20-2 at 5.) 	Officers then asked Mr. Lombardi for the passcode to
his phone, and, after some back and forth about whether the warrant authorized
police to search Mr. Lombardi’s device given his assertions that he was not a resident
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at the address, he declined, claiming that he had “forgot” and that he instead used
the phone’s facial recognition to unlock it.
	Id. at 6–9. 	After Mr. Lombardi initially
denied having recently used Telegram, when officers told him that they knew that to
be untruthful and pressed him on his use of that application, Mr. Lombardi invoked
his right to silence, and the officers terminated the interview.
Id. at 10–12.
During the officers’ execution of the search warrant, one of them apparently
recognized Mr. Lombardi as having been investigated and arrested for prior child
pornography offenses, one of which led to a state criminal conviction. (ECF No. 47-2
at 186–87.) 	The officers subsequently obtained documentation from a state court
website indicating that Mr. Lombardi remained on probation for that prior criminal
conviction.
	Id. 	at 192–95. 	The 	documentation 	included 	a 	copy 	of 	a 	Fourth
Amendment waiver form executed by Mr. Lombardi in connection with his plea
agreement for that conviction.
	Id. at 192. 	This waiver authorized warrantless
searches of Mr. Lombardi’s digital devices—at least in connection to enforcing the
terms of his probation—and required him to provide PIN codes for those devices when
needed.
Id. at 192, 239–40.
Officers then asked Mr. Lombardi for his phone’s PIN code a second time.
	Id.
at 193. 	This second interaction was not recorded because the officers reportedly
believed 	that 	Mr. 	Lombardi 	was 	required, 	under 	the 	terms 	of 	his 	probation
conditions, to provide the PIN code upon their request.
	Id. at 194. 	Mr. Lombardi
informed the officers that he was no longer on probation and therefore not required
to turn over the PIN code, but the officers did not believe him, apparently based on
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discrepancies in what he said during the prior interview and because they had no
reason at the time to think that the documents they obtained from the court were
outdated.
	Id. at 194–96. 	After being warned that failure to provide the PIN code
could violate his probation, Mr. Lombardi ultimately disclosed the code to the officers.
Id. at 211. 	The PIN code was apparently the same code that Mr. Lombardi had
provided during one of the previous investigations and was based on his date of birth.
Id. at 197–98.1
Law 	enforcement 	subsequently 	finished 	executing 	the 	search 	warrant,
transported Mr. Lombardi to the United States Marshals Office, and began a full
forensic extraction of the phone’s contents.
	Id. at 46. 	Later that same day, the
assigned AUSA contacted the officers and instructed them to again stop their forensic
analysis of the phone because the AUSA had just learned that Mr. Lombardi’s
probation had, in fact, been terminated before the date of the search warrant’s
execution.
	Id. at 46–47; 151–53. 	Mr. Lombardi’s probation’s early termination
resulted from his completion of a new “good time” credit system for probation.
	See
ECF No. 47-3 at 49–50. The court had not yet updated its online information at the
time officers accessed it to determine Mr. Lombardi’s probation status.
Id. at 47. Law
enforcement did not have direct access at that time to the electronic systems that
would have reflected the change in Mr. Lombardi’s status.
	Id. 	While the officers
1 While police evidently did not require the PIN code to access his cell phone, as it
was unlocked at the time they seized it, they wanted it to facilitate a full forensic
analysis of the phone.
Id. at 223.
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could have directly contacted the probation office to verify Mr. Lombardi’s status, this
was apparently not common practice.
Id. at 64–66.
The officers then applied for and received a second search warrant specifically
authorizing the search of Mr. Lombardi’s cell phone.
See ECF No. 30-1. The affidavit
in support of this warrant mentioned that law enforcement had conducted a “preview”
of the phone’s contents but did not disclose what those contents were.
	Id. at 3. The
affidavit otherwise generally described the events of the first warrant’s execution,
including the back-and-forth between officers and the United States Attorney’s Office
regarding 	their 	authority 	to 	search 	the 	contents 	of 	the 	phone.
	Id. 	at 	2–4.
Investigators subsequently conducted a full forensic analysis of the phone’s contents.
(ECF No. 47-3 at 7.)
II. 	GOVERNING LAW
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, 	against 	unreasonable 	searches 	and 	seizures, 	shall 	not 	be
violated, 	and 	no 	Warrants 	shall 	issue, 	but 	upon 	probable 	cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
U.S. Const. amend. 	IV. 	“The text of the Amendment thus expressly imposes two
requirements. First, all searches and seizures must be reasonable. Second, a warrant
may not be issued unless probable cause is properly established and the scope of the
authorized search is set out with particularity.”
Kentucky v. King, 563 U.S. 452, 459
(2011).
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“A search within the meaning of the Fourth Amendment occurs whenever the
government intrudes upon any place and in relation to any item in which a person
has a reasonable expectation of privacy.”
	United States v. Sheehan, 70 F.4th 36, 44
(1st Cir. 2022). 	“[T]he relevant inquiry in deciding whether a seizure [of a person]
occurred,” 	on 	the 	other 	hand, 	“is 	whether 	‘in 	view 	of 	all 	the 	circumstances
surrounding the incident, a reasonable person would have believed that he [or she]
was not free to leave.”
	United States v. Howard, 66 F.4th 33, 42 (1st Cir. 2023),
(quoting
United States v. Mendenhall, 446 U.S. 544, 553 (1980)). 	“A ‘seizure’ of
property occurs when there is some meaningful interference with an individual's
possessory interests in that property.”
	United States v. Jacobsen, 466 U.S. 109, 113
(1984).
Searches and seizures within a residence are presumptively unreasonable
absent a search warrant.
	Brigham City v. Stuart, 547 U.S. 398, 403 (2006);
see also
United States v. Forbes, 181 F.3d 1, 5 (1st. Cir. 1999) (“A warrantless search violates
the Fourth Amendment unless it comes within one of the ‘few specifically established
and well-delineated exceptions” to the warrant requirement.’”) (quoting
Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973)). “Whether a search exceeds the scope of a
search warrant is an issue [courts] determine through an objective assessment of the
circumstances surrounding the issuance of the warrant, the contents of the search
warrant, and the circumstances of the search.”
	United States v. Pimentel, 26 F.4th
86, 92 (1st Cir. 2022). 	However, “because the ultimate touchstone of the Fourth
Amendment is ‘reasonableness,’ the warrant requirement is subject to certain
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exceptions.”
Brigham City, 547 U.S. at 403 (citing
Flippo v. W. Virginia, 528 U.S. 11,
13 (1999)). 	The Government bears the burden of proving the applicability of an
exception by the preponderance of the evidence.
	United States v. Matlock, 415 U.S.
164, 177 (1974).
Evidence obtained in violation of an individual’s Fourth Amendment rights is
subject to a judicially established “exclusionary rule that, when applicable, forbids
the use of improperly obtained evidence at trial.”
Herring v. United States, 555
U.S. 135, 139 (2009). “[T]he exclusionary rule also prohibits the introduction of
derivative evidence, both tangible and testimonial, that is the product of the
primary evidence, or that is otherwise acquired as an indirect result of the unlawful
search, up to the point at which the connection with the unlawful search becomes
‘so attenuated as to dissipate the taint.’”
Murray v. United States, 487 U.S. 533,
536–37 (1988) (quoting
Nardone v. United States, 308 U.S. 338, 341 (1939)). This
prophylactic rule “was adopted to effectuate the Fourth Amendment right of all
citizens ‘to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.’”
United States v. Clanadra, 414 U.S. 338
(1974) (quoting U.S. Const. amend. IV). Similarly to the warrant requirement,
however, the exclusionary rule is subject to certain exceptions that permit evidence
that was obtained in violation of an individual’s Fourth Amendment rights to still
be used against that individual at trial.
See Arizona v. Evans, 514 U.S. 1, 10 (1995)
(“We have recognized, however, that the Fourth Amendment contains no provision
expressly precluding the use of evidence obtained in violation of its commands.”).
The exclusionary rule also applies to statements obtained in violation of an
individual’s rights under the Fifth Amendment, which provides that “[n]o person . . .
shall be compelled in any criminal case to be a witness against himself . . . nor be
deprived of life, liberty, or property, without due process of law.” U.S. Const.. amend.
V;
see Dickerson v. United States, 530 U.S. 428, 433 (2000). 	To comport with the
Fifth Amendment, statements obtained by police must be both voluntary and made
following a knowing and voluntary waiver of the right to self-incrimination.
	See
Miranda v. United States, 384 U.S. 436, 444 (1966);
Dickerson, 530 U.S. at 433 (“Over
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time, our cases recognized two constitutional bases for the requirement that a
confession be voluntary to be admitted into evidence: the Fifth Amendment right
against 	self-incrimination 	and 	the 	Due 	Process 	Clause 	of 	the 	Fourteenth
Amendment.”);
see also United States v. Jackson, 918 F.2d 236, 241 (1st Cir. 1990)
(“An involuntary statement violates due process and its admission into evidence
mandates vacation of the conviction even though other evidence in the case would
have been sufficient to convict.”).
“The voluntariness of an admission depends on ‘whether the will of the
defendant [was] overborne so that the statement was not his free and voluntary act,
and that question [is] to be resolved in light of the totality of the circumstances.’”
United States v. Jackson, 918 F.2d 236, 241 (1st Cir. 1990) (alterations in original)
(quoting
Bryant v. Vose, 785 F.2d 364, 367–68 (1st Cir. 1986)). The government bears
the burden of proving voluntariness by a preponderance of the evidence.
	Id.
“Relevant considerations include the length and nature of the questioning, promises
or threats made by investigators, and any deprivation of the suspect’s essential
needs.”
	United States v. Jacques, 744 F.3d 804, 809 (1st Cir. 2014). 	“They also
include 	the 	defendant's 	personal 	circumstances, 	including 	his 	age, 	education,
intelligence, and mental condition, as well as his prior experience with the criminal
justice system.”
Id. (internal citation omitted).
As for the validity of
Miranda waivers, as with establishing voluntariness, the
burden is on the prosecution to “to establish waiver by a preponderance of the
evidence.”
	Berghuis v. Thompkins, 560 U.S. 370, 384 (2010). 	“‘The waiver inquiry
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“has two distinct dimensions’: waiver must be ‘voluntary in the sense that it was the
product of a free and deliberate choice rather than intimidation, coercion, or
deception,’ and ‘made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.’”
	Id. at 382–83
(quoting
Moran v. Burbine, 475 U.S. 412, 421 (1986)). 	An oral recitation of the
Miranda rights is not necessarily required.
See United States v. Van Dusen, 431 F.2d
1278, 1280 (1st Cir. 1970) (“Appellant asserts that, faced with a refusal to sign the
waiver, the agents should have given the warning orally. 	We cannot say that as a
matter of law such a course of action is required.”).
III. 	DISCUSSION
Mr. Lombardi’s Motion to Suppress seeks suppression of evidence based on
alleged violations of his Fourth, Fifth, and Sixth Amendment rights. (ECF No. 20 at
1.)He first asserts that he was subjected to an unlawful, warrantless seizure and
subsequent search of both his person and his cell phone’s contents, in violation of his
Fourth Amendment right against unreasonable searches and seizures.
	Id. 	He also
alleges that his Fifth and Sixth Amendment rights “were violated over the course of
two separate interrogations.”
Id.
The Court addresses each of these claims in turn.
A. 	The Fourth Amendment Does Not Require Suppression of Evidence
from Mr. Lombardi’s Phone.
1. 	Mr. Lombardi’s Detention was Reasonable
Mr. Lombardi first challenges his detention both during and after the search
warrant’s execution. 	(ECF No. 20-1 at 7.) 	While Mr. Lombardi recognizes that,
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under
	Michigan v. Summers, “a warrant to search for contraband founded on
probable cause implicitly carries with it the limited authority to detain the occupants
of the premises while a proper search is conducted,” 452 U.S. 692, 705 (1981), he
argues that his detention was nevertheless unreasonable. (ECF No. 20-1 at 7–8.)
To the extent that the officers initially detained Mr. Lombardi during the
search warrant’s execution, that detention was clearly reasonable.
	See Muehler v.
Mena, 544 U.S. 93, 98 (2005) (explaining that “[a]n officer’s authority to detain
incident to a search is categorical”). 	To the extent that Mr. Lombardi was further
detained by the officers, the reasonableness of that detention necessarily depends on
whether they developed probable cause to believe that he was the target of their
investigation. 	The officers quickly found evidence on Mr. Lombardi’s cell phone
indicating that he was the Telegram user they were looking for. Even if that evidence
were not clearly admissible to prove guilt at trial, it was enough to support probable
cause that officers needed to arrest Mr. Lombardi.
	See Brinegar v. United States,
338 U.S. 160, 172–73 (1949) (distinguishing “the difference between that is required
to prove guilt in a criminal case and what is required to show probable cause for
arrest or search”).2 As a result, the officers’ detention of Mr. Lombardi both during
the initial execution of the search warrant and after they previewed his cell phone’s
conduct was reasonable.
2 This is not to say that an arrest justified by inadmissible evidence can, in turn, be
used to justify the admissibility of that evidence.
	See New York v. Harris, 495 U.S.
14, 19 (1990) (describing “the familiar proposition that the indirect fruits of an illegal
search or arrest should be suppressed when they bear a sufficiently close relationship
to the underlying illegality”).
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2. 	The Seizure of Mr. Lombardi’s Phone Was Within the Scope of the
Warrant
Mr. Lombardi next argues that the search of his person and the seizure of his
cell phone exceeded the scope of the search warrant. 	(ECF No. 20-1 at 8.) 	He
acknowledges that the search warrant authorized officers to search both the target
address itself and the persons of the individuals named in the warrant to seize any
handheld digital devices or cell phones. 	(ECF No. 47-1 at 35.)But Mr. Lombardi
contends that the search warrant did not authorize the search of any other person.
Id. Therefore, because Mr. Lombardi’s cell phone was on his person when the officers
demanded that he hand it over, that demand exceeded the scope of the warrant.
Id.
For comparison, Mr. Lombardi turns to
United States v. Sheehan, 70 F.4th 36
(1st Cir. 2023). (ECF No. 47-1 at 35.) There, police obtained a warrant allowing them
to search both the defendant’s residence and his person for electronic devices,
including cell phones.
	Sheehan, 70 F.4th at 41. 	The defendant’s wife had his cell
phone in her possession at the time police executed the warrant.
	Id. 	As the wife
attempted to make a call with the phone, one of the officers seized it from her hands.
Id. 	The defendant sought suppression of evidence obtained from the phone arguing
that police’s seizure of the phone exceeded the scope of the warrant.
Id. at 42.
The First Circuit disagreed.
	Id. at 44. It noted that the defendant “point[ed]
to no evidence that the phone was concealed on his wife’s person” at the time police
seized it.
Id. Nor did the defendant “point to any evidence that the police patted [the
wife] down or rummaged through her pockets to obtain it.”
	Id. 	The First Circuit
consequently determined that, within the Fourth Amendment context, no search had
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taken place, explaining that there is no intrusion against a person’s “reasonable
expectation of privacy . . . when an object is simply held in one’s hand and the officer
on the scene can see that the held object is subject to seizure pursuant to the terms
of a warrant.”
	Id. 	As such, because the warrant authorized police to seize any cell
phones they found in the defendant’s home, and because the defendant’s cell phone
was in the defendant’s home at the time police executed the warrant, their seizure of
the phone from the wife’s hands was authorized by the warrant even though it did
not name her as a person to be searched.
Id.
Mr. Lombardi seeks to distinguish this case from
Sheehan by pointing to the
fact that, at the time the officer demanded Mr. Lombardi hand over his cell phone, it
was in his pocket. (ECF No. 47-1 at 34–35.) To evaluate this claim, the Court must
first distinguish between the alleged search of Mr. Lombardi’s person and the seizure
of the cell phone. The officer undoubtably seized Mr. Lombardi’s cell phone when he
took it from his person.
See Jacobsen, 466 U.S. at 113. However,
Sheehan suggests
that this seizure fell within the scope of the first search warrant because that warrant
authorized the seizure of all “cellular telephones . . . that may be, or are used” to
engage in specified activities related to the possession or distribution of child
pornography.
	See ECF No. 30 at 41. 	Under
Sheehan, the fact that the cell phone
was taken from the person of an individual not named in the warrant did not mean
that the officer lacked the authority to seize it when given the opportunity to do so.
70 F.4th at 41.
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The remaining question, then, is whether the officer conducted a search
outside the scope of the warrant when he took the cell phone from Mr. Lombardi.
First, the Court finds that the officer’s question to Mr. Lombardi as to what the source
of the noise coming from his pocket was did not itself constitute a Fourth Amendment
search.
	See United States v. St., 614 F.3d 228, 233–34 (6th Cir. 2010) (explaining
that, while “words alone may amount to a search,” no search occurred when an officer
asked whether a defendant “had anything in his pocket” because “those sorts of
questions are not the verbal equivalent of reaching into a suspect’s pocket to remove
the contents”);
United States v. Griffin, 696 F.3d 1354, 1362–63 (11th Cir. 2012)
(“Whatever else they might be, questions posed by a police officer to a suspect about
what he has in his pocket . . . are not, in the Fourth Amendment sense, a search.”).
Instead, whether the officer conducted a Fourth Amendment search depends
on whether, once Mr. Lombardi identified the source of the noise in his pocket as a
cell phone, the officer’s order to Mr. Lombardi to hand over the phone constituted a
search. 	Generally, the fact that police have a warrant to search premises does not
automatically authorize them to search people found within those premises but not
named in the warrant.
	See Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“Where the
standard is probable cause, a search or seizure of a person must be supported by
probable cause particularized with respect to that person. This requirement cannot
be undercut or avoided by simply pointing to the fact that coincidentally there exists
probable cause to search or seize another or to search the premises where the person
may happen to be.”);
	but see Maryland v. Pringle, 540 U.S. 366, 373 (2003)
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(permitting search of car passengers because “it was reasonable for the officer to infer
a common enterprise among the three men”). Further, it seems likely that, generally,
a demand that a suspect “empty his pockets” constitutes a search within the meaning
of the Fourth Amendment because that demand is essentially “the verbal equivalent
of reaching into a suspect’s pocket to remove the contents.”
	Street, 614 F.3d at 234
(collecting cases and concluding that “an officer may not sidestep the requirements of
the Fourth Amendment by directing a suspect to ‘empty your pockets,’ then disclaim
any constitutional violation on the ground that he verbally directed the suspect to act
without touching or in any way searching him”).
Here, however, the officer’s demand was not that Mr. Lombardi “empty his
pockets”; instead, it was that Mr. Lombardi hand over his cell phone, a cell phone
which the officer was authorized by the warrant to seize and which Mr. Lombardi
admitted was in his pocket after its noise alerted the officer. In comparison, the Court
first turns to
United States v. Pope, 686 F.3d 1078 (9th Cir. 2012). 	There, after an
officer smelled marijuana on the defendant during a traffic stop and the defendant
admitted to possessing marijuana in his pocket, the officer ordered the defendant to
place the marijuana on the hood of his car.
Id. at 1080. The court first explained that
“a Fourth Amendment search occurs when police command a person to reveal
something 	in 	which 	he 	would 	otherwise 	have 	a 	reasonable 	expectation 	of
privacy
and that thing or that area is revealed as a result of the command.”
Id. at
1082 (emphasis in original). The court then accepted the United States’s concessions
that the defendant had a reasonable expectation of privacy in his pockets and that,
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as such, the officer’s command “effectuated a Fourth Amendment search.”
	Id. at
1081–83.
However,
United States v. Cowan, 674 F.3d 947 (8th Cir. 2012), presents
another point of comparison. There, detectives obtained a warrant to search both the
premises and the person of a named individual for “indicia of occupancy” including
keys during an investigation into suspected drug trafficking.
	Id. at 951. 	While
executing the warrant, police encountered the defendant.
	Id. 	While frisking the
defendant, police felt keys in his front pocket, which they immediately removed.
	Id.
The Eighth Circuit determined that seizure of these keys was permitted even though
the keys were not inherently contraband because the officer “immediately recognized
the object as keys and the warrant specifically authorized seizing keys as indicia of
occupancy or ownership of the premises.”
Id. at 953. But the Eighth Circuit’s holding
was based, in part, on its finding that police had a reasonable belief that the
defendant may have been part of a “common enterprise,” such that police had
probable cause to believe that the keys were evidence of a crime.
See id. at 953–54.3
The facts here do not align with either
Pope or
Cowan. 	Unlike
Pope, the
officers here were armed with a warrant authorizing them to seize Mr. Lombardi’s
cell phone, and their demand that he hand it over seems a reasonable means of
3 The Eighth Circuit also distinguished the case from
Minnesota v. Dickerson, 508
U.S. 366 (1993), because, unlike in
Dickerson where the nature of an object in an
individual’s pocket was only determined after “squeezing, sliding, and otherwise
manipulating the contents of the defendant’s pocket,”
id. at 378, in
Cowan the officer
“reasonably could have believed the keys were apartment keys and, therefore, covered
by the warrant.” 674 F.3d at 953.
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effectuating that authority. 	Unlike
Cowan, however, the officers had no reason to
believe that Mr. Lombardi was a part of any broader “common enterprise” that would
supply them with the probable cause to believe that he was the target of their search.
The Court therefore turns to a fundamental, underlying question: did Mr. Lombardi,
after noise from his phone alerted officers and after he admitted to having it in his
pocket, retain a reasonable expectation of privacy in keeping it in his pocket?
The 	Court 	finds 	that 	he 	did 	not. 	“Whether 	a 	defendant 	has
a reasonable expectation of privacy in a particular place is a two-pronged inquiry.
“[Courts] consider ‘first, whether the movant has exhibited an actual, subjective,
expectation of privacy; and second, whether such subjective expectation is one that
society is prepared to recognize as objectively reasonable.’”
	United States v. Werra,
638 F.3d 326, 331 (1st Cir. 2011) (quoting
United States v. Rheault, 561 F.3d 55, 59
(1st Cir. 2009)). 	Crucially, it is Mr. Lombardi who “bears the burden of proving not
only that the search . . . was illegal, but also that he had a legitimate expectation of
privacy” in the place being searched.
Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
Here, while Mr. Lombardi does not expressly claim to have had a reasonable
expectation of privacy in his cell phone’s location in his pocket, he does argue that the
cell phone “was concealed on his person.” 	(ECF No. 47-1 at 34.) 	But once the cell
phone audibly alerted the officer, and once Mr. Lombardi told the officer that the cell
phone was in his pocket, it seems unlikely that he retained a subjective expectation
of privacy in the cell phone’s location. And while the fact that he told the officer about
the cell phone while he was being detained might arguably weigh against a finding
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that he willingly surrendered his subjective expectation of privacy, on the whole it
seems questionable that an objectively reasonable person retains an expectation of
privacy in the location of a cell phone that audibly alerts officers to its existence while
they are in the middle of a protective frisk during the execution of a search warrant.
As a result, the seizure of Mr. Lombardi’s cell phone, as effectuated by the
officer’s demand that he hand it over, was just that: a seizure, rather than a search.
Under
Sheehan, the officer was authorized to seize his phone because it was present
within the premises during the execution of the warrant. 	70 F.4th at 41. Ordering
Mr. Lombardi to turn over the cell phone was not the “verbal equivalent” of rifling
through his pockets,
see Street, 614 F.3d at 234, but rather the act of the authorized
seizure itself. As such, suppression of evidence subsequently obtained from a search
of the cell phone’s contents—which, as a cell phone found in the premises, was
authorized by the warrant—is not justified.4
3. 	Officers Acted in Good Faith in Searching Mr. Lombardi Based
on the Court Website Records
Although the Court has found that the officer’s demand that Mr. Lombardi
hand over his phone did not, under the peculiar circumstances of this case, constitute
an unlawful search, given the uncertainty in this area of law the Court addresses the
government’s strongest alternative argument against suppression: that even if
officers exceeded the scope of the warrant by searching Mr. Lombardi, they did so in
4 The Court’s finding is limited to the unique circumstances of this case and should
not be taken as suggesting that a premises warrant inherently authorizes police to
command that persons not obviously connected to the searched premises surrender
any personally concealed items that might fall within the warrant’s terms.
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good faith. (ECF No. 28 at 14–17.) Under the most common application of the “good
faith” exception to the exclusionary rule, evidence will not be suppressed “when an
officer acting with objective good faith has obtained a search warrant from a judge or
magistrate and acted within its scope.”
	United States v. Leon, 468 U.S. 897, 920
(1984);
see also United States v. Gonzalez, 113 F.4th 140, 148 (1st Cir. 2024) (“Under
the exclusionary rule, when a magistrate judge issues a warrant that is not supported
by probable cause, the evidence obtained from the search is usually suppressed. That
is, unless the
Leon good-faith exception applies.”) (internal citation omitted).
But here, the problem was not that the warrant lacked probable cause or was
otherwise inherently deficient, but rather that officers exceeded the scope of the
warrant during their initial search of Mr. Lombardi’s person.
	See Leon, 468 U.S. at
920 n.19 (“Our discussion of the deterrent effect of excluding evidence obtained in
reasonable reliance on a subsequently invalidated warrant assumes, of course, that
the officers properly executed the warrant and searched only those places and for
those objects that it was reasonable to believe were covered by the warrant.”);
United
States v. Fuccillo, 808 F.2d 173, 177–78 (1st Cir. 1987) (finding no good faith where
officers exceeded a warrant’s scope by seizing the entire contents of a warehouse
rather than those targeted by the warrant). As Mr. Lombardi was not named by the
warrant, it was not reasonable for officers to believe that the warrant authorized
them to search his person, and the exception consequently does not apply to that
initial search.
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The good-faith exception is not, however, limited only to situations where
officers relied on a facially defective warrant.
See Arizona v. Evans, 514 U.S. 1 (1995).
In
Evans, officers arrested an individual based on an outstanding warrant discovered
during a police computer inquiry into that individual’s name.
Id. at 4. Officers later
discovered that the outstanding warrant had been quashed before the arrest, and
that the mistake was the result of an administrative error by court employees.
	Id.
The Supreme Court held that the good-faith exception precluded exclusion of evidence
obtained incident to that arrest, finding that the prophylactic purpose of the
exclusionary rule was not advanced when the error at issue was not connected to
police misconduct.
Id. at 15;
cf. United States v. Gines-Perez, 90 Fed. Appx. 3, 4 (1st
Cir. 2004) (construing
Evans as not applicable where the faulty database was the
product of
police error).
Here, the facts bear some distinction from
Evans: the database relied on by the
officers was public facing rather than an internal system for court and police use, the
records 	at 	issue 	were 	probation 	records 	rather 	than 	an 	outstanding 	warrant
justifying an immediate arrest, and the officers could conceivably have directly
contacted the state probation office to verify Mr. Lombardi’s status. 	Nevertheless,
the Court finds that the officers acted in good faith by relying on the court website
records. 	The evidence presented to the Court suggests that, at the time the officers
searched the state court website, they had no reason to believe (apart from Mr.
Lombardi’s own protestations) that its records regarding the duration of his probation
might be inaccurate. Thus, while the officers could have directly contacted the state
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probation office to verify Mr. Lombardi’s probation status, they had no reason to do
so, particularly given the evidence presented to the Court that this kind of verification
was not common practice by law enforcement.
As such, officers acted in good faith by proceeding based on the court website
records that indicated they were permitted to access and search Mr. Lombardi’s cell
phone. While this only took place
after they had searched Mr. Lombardi’s person to
obtain the cell phone and then previewed the contents of that phone, their search of
the state court records was independently premised on one officer’s recognition of Mr.
Lombardi as a prior offender. 	Under these circumstances, the independent source
doctrine resolves any remaining ambiguity as to whether suppression of the evidence
from Mr. Lombardi’s phone is warranted.
	See Nix v. Williams, 467 U.S. 431, 443
(1984) (“The independent source doctrine allows admission of evidence that has been
discovered by means wholly independent of any constitutional violation.”);
United
States v. Silvestri, 787 F.2d 736, 739 (1st Cir. 1986) (“In the classic independent
source situation, information which is received through an illegal source is considered
to be cleanly obtained when it arrives through an independent source.”). Had the
officers reviewed the court records
before demanding Mr. Lombardi hand over his cell
phone, they would have had a good-faith basis for that demand; the Court sees little
reason 	to 	penalize 	the 	fact 	that 	the 	officers 	developed 	this 	good-faith 	basis
independent of the contents of the phone itself and within minutes of their original
demand.
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Because the good-faith exception applies to the officers’ conduct, even if their
demand that Mr. Lombardi hand over his cell phone exceeded the scope of the
warrant and was an unauthorized search, the Court finds it proper not to exclude
evidence obtained from that phone.
B. 	Mr. Lombardi Knowingly and Voluntarily Waived his
Miranda Rights
Mr. Lombardi also challenges the voluntariness of his statements made during
both his initial interview with the officers and during their later questioning
regarding his PIN code. (ECF No. 20-1 at 8–9.) According to Mr. Lombardi, “police
showed [him] a
Miranda waiver form but gave him no meaningful opportunity to read
it.”
Id. at 9. Further, Mr. Lombardi alleges “there is no indication that he knowingly
waived his rights” and contends that “[h]is signature on the waiver form is non-
dispositive because the record clearly indicates that the interrogating officer directed
him to sign it.” He also argues that the officers coerced him into making statements
“during the second, unrecorded, interrogation by threatening to jail him if he didn’t
answer their questions.”
Id.
Based on the totality of the circumstances, the Court disagrees with Mr.
Lombardi’s characterization of his
Miranda waiver. The recorded interview with Mr.
Lombardi indicates that officers gave him the
Miranda waiver form and asked him
to review it. Mr. Lombardi responded by asking where he needed to sign to execute
the waiver. 	There is no indication from the record that he was coerced into signing
the form. Further, while it would likely have been advisable for the officers to have
either verbally read the
Miranda rights to Mr. Lombardi or asked him to read them
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himself, their failure to do so does not make his waiver unknowing.
See Van Dusen,
431 F.2d at 1280. 	Given Mr. Lombardi’s own apparent recognition of the
Miranda
waiver form and his prior involvement with law enforcement, the Court finds his
waiver to be knowing.
As such, because Mr. Lombardi’s statements during the initial interview were
voluntarily made following a knowing and voluntary
Miranda waiver, suppression of
those statements is unwarranted. As the United States has stated its intention not
to use as evidence Mr. Lombardi’s provision of his passcode during the second,
unrecorded questioning by the officers, the Court need not determine whether that
questioning violated his right against self-incrimination.
IV. 	CONCLUSION
For the foregoing reasons, Mr. Lombardi’s Motion to Suppress Evidence and
Statements (ECF No. 20) is DENIED.
IT IS SO ORDERED.
_________________________________
Mary S. McElroy
United States District Judge
January 12, 2026
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