Court: You Can’t Add A Lie To An Already-Executed Warrant And Expect Everything To Be Constitutional

This is not a fun case. It's instructional, but it involves some pretty noxious criminal behavior. And that's how these things work, usually. People who aren't facing criminal charges rarely need to challenge warrants. They never need to challenge the evidence used against them because, well, no one's using any evidence against them. (h/t FourthAmendment.com)

The background here is a series of sex crimes allegedly committed by Brian Raymond. Raymond worked for the US State Department and was staying at a government-leased property in Mexico City. An investigation involving the State Department, FBI, and local law enforcement was initiated after a drugged, naked woman was found screaming for help from Raymond's balcony.

Further investigation uncovered recordings made by Raymond of him drugging women and molesting them while they were unconscious. When Raymond returned to the United States, he was interviewed by the State Department's Diplomatic Security Service (DSS), which then obtained a search warrant for his two iPhones.

This is what the warrant stated, as recounted in the DC federal court decision [PDF]:

Specifically, the Phone Warrant authorized the search and seizure of those two phones, for the purpose of identifying electronically stored data" reflecting records related to AV-1 [Adult Victim 1], sexual assaults more generally, and records related to the research, purchase, possession, or use" of date rape substances. Law enforcement was further authorized, during the search, to press Defendant's fingers to the Touch ID sensors of the two phones and to hold both phones to Defendant's face for the purpose of attempting to unlock the devices via Face ID." Law enforcement acknowledged in the warrant, however, that these biometrics may not actually open either phone; sometimes, a passcode or password must be used instead." Agent Gajkowski offered an example in her affidavit: when the device has been turned off or restarted." Nothing in the warrant authorized law enforcement to obtain passcodes, however--only biometrics.

The warrant also noted the agents intended to use the pretext of a follow-up interview to seize the devices in a public setting. Failing that, the agents would approach him at the hotel and attempt to take the phones then. The agents met with Raymond and asked for his phones. Raymond said he was going to turn at least one of them off first. He also informed the agents, when asked, that they were secured by PINs, rather than biometrics. He also said he wanted to talk to a lawyer before handing over the phones. The DSS said this wasn't an option and explained the warrant it had obtained. It then took the phones from Raymond and asked him for their passcodes. Raymond refused.

After all of this, the following statement was made as the agents placed the phones in evidence bags.

Agent Gajkowski announced, The time is 12:26 Saturday, June 6th, and this concludes our interview and search and seizure warrant execution."

Except Agent Gajkowski didn't apparently mean what she said, at least not in the legal sense of those words.

Despite law enforcement's announcement that they had executed the warrant, they returned twice, this time to the lobby of Defendant's hotel.

Here's why they did this:

Upon receiving that report, the prosecutor directed law enforcement to go back and compel [Defendant] to open" his phones, evidently through biometrics. Agent Nelson testified, however, that he understood the prosecutor to have directed law enforcement to use biometrics and, if that method failed, detain [Defendant] until he gives [law enforcement] pass[words]."

Well, the Fifth Amendment is kind of an issue here. Compelling someone to provide a password can be considered forcing them to testify against themselves. And if that's the conclusion a court reaches, the evidence obtained is useless. Detaining someone until they cough up passwords adds other parts of the Constitution to the mix, which makes it even more likely any recovered evidence will be worthless.

So, now a bunch of agents and officers were gathered in the lobby of the hotel, in possession of nothing more than a (now-useless) search warrant and the slim hope they might be able to trick Raymond into unlocking his phones. (Emphasis in the original.)

Agent Nelson indicated that Mr. Raymond was not under arrest" but that [t]he search warrant compels [him] to open [his] phone" so they had to come back and get [him] to open his phone." Agent Gajkowski indicated that law enforcement personnel [are] authorized to access fingers, including thumb onto the device, and further to hold the phone up to [his] face." When asked if he could open the phone with a passcode, Mr. Raymond replied, Yeah. If I'm compelled to do it, sure." Feet away from both Defendant and Agent Gajkowski, Agent Nelson responded you are," i.e., Defendant was legally obligated to use passcodes to open the devices. Agent Gajkowski did not correct Agent Nelson to explain, as they both knew, that the warrant did not compel Defendant to open his phones with anything other than biometrics.

Raymond unlocked both phones and handed them to the agents who tried to change the passcodes but discovered they couldn't without his Apple account password. They requested this from Raymond while making it far more clear he was not legally compelled to provide this password, much to the confusion of the person they had just lied to moments ago about compelled passcode production.

Then they came back an hour later to ask Raymond to enter his Apple account password so the agents could change the phones' passcodes. He did this and agents once again left, taking with them the warrant they had stated had been executed in full nearly three hours earlier - a warrant that specifically did not authorize them to compel passcode production.

Based on what agents found on these phones, more warrants were requested, seeking content from several messaging services as well as from Raymond's iCloud account. It's unclear how much of this evidence will survive the fallout from this suppression order, though. The court says you can't tell people a warrant says something when it doesn't and you especially can't do it when the warrant you have has already expired due to its previous execution.

Because the warrant expired at the conclusion of the first search, the second and third seizure of Defendant to effect law enforcement's intended search was unlawful. And because the record does not establish that either iPhone in fact belonged to anyone otherthan Defendant, the contents of both phones are therefore presumptively subject to suppression. These facts, plus the fact that law enforcement would have had to have known that their returnefforts to re-execute an expired warrant would be futile, require the suppression of the phones' contents.

The warrant that supposedly backs the second and third visits with Raymond had no more power than a random page from a phone book.

A search warrant, like a pumpkin carriage, retains its magical properties only for a certain period of time. For example, after fourteen days, midnight strikes, and the search warrant loses its validity. Fed. R. Crim. P. 41(e)(2)(A)(i). Similarly, a warrant's authority to search a person or premises expires when the items described in the warrant h[ave] been seized."

There are cases where searches can be paused" during mid-execution. The government cites where officers searching a car spent three days looking for a crowbar to open up the engine block, returning to finish the job after the warrant's expiration. This isn't like that, says the DC court. In the cases cited by the government, investigators encountered unexpected issues that made it impossible to fully carry out the authorized search. In this case, the obstacle was not only know, but it was listed in the warrant affidavit and acknowledged by the agents in their conversation with the prosecutor. (Emphasis in the original.)

[U]nlike in Gerber, law enforcement was not met by an unexpected, surmountable challenge. They were faced with passcodes that they anticipated Defendant might have activated, and acknowledged that their form of crowbar, biometrics, would not work under that circumstance. Nevertheless, despite understanding that they had executed the warrant and that a return trip would be futile, Agents Gajkowski and Nelson went one step further to compel not just biometrics but also Defendant's entry of his passcodes, decidedly beyond the scope of the warrant and contrary to explicit instructions from the prosecutor to Agent Gajkowski before the execution of the warrant. That is not a reasonable, good faith extension of a half-executed warrant. That is a futile, illegal attempt to reanimate a warrant whose authority had already lapsed.

And that eliminates one of the government's get-out-of-suppression cards:

There is no good-faith explanation for this conduct. To reiterate, Agents Gajkowski and Nelson knew that they had fully executed the Phone Warrant at the end of their first meeting with Defendant. Agent Gajkowski knew that any further interaction to unlock either phone would be futile, unless she somehow convinced or ordered Defendant to take a step not permitted by the warrant--passcodes. She knew that Defendant refused to voluntarily provide or enter them at the first interaction. Yet she returned with Agent Nelson, and permitted, by an act of omission, Agent Nelson to unlawfully compel Defendant to enter a passcode against Defendant's will.

Nor could the evidence found on the phones have been inevitably" discovered during the course of the investigation and the subsequent warrants the government obtained relied heavily on this illegal search to find targets for further searches.

In this instance, there were no separate avenues of investigation that were occurring at the same time when the officers illegally searched Defendant's phones. In the alternative where the officers did not compel Defendant to turnover his passcodes, the agents testified that they would have used the CIF to break into the phone. The evidentiary record establishes that it is indeed wholly speculative that CIF would have ever gained access to either phone's contents, and even then precisely what would have been forensically imageable. The brute force" method CIF would have employed has high variance; using brute force can take moments to open a phone, but it can also take years. In some instances, the phone never unlocks. This step alone injects enough uncertainty into this separate, hypothetical line of investigation to vitiate the Government's invocation of the inevitable discovery doctrine. With no exception to the exclusionary rule on point, the Court must suppress the contents of both phones.

That's the way it should be. The government should never be allowed to act like a warrant has no end date. Nor should it be allowed to lie about what the warrant authorizes. Unfortunately for Raymond, this probably isn't going to get him off the hook. The most damning evidence against him was recovered from his iCloud account with a valid warrant - one that remains valid even if everything illegally obtained from phones is stripped from the affidavit. He had two iPhones. It was inevitable he had an iCloud account and investigators stated search his iCloud account would have been the next move, whether or not they were able to unlock the phones.

But what should be suppressed is suppressed. And that's what matters. What happened here was an embarrassment on top of being an egregious, willing violation of someone's rights.