United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION, AND ORDER
R. ZWART, UNITED STATES MAGISTRATE JUDGE
filed three motions arising from the search of his cellphone.
First, Defendant moved the court for an order
“dismissing the Indictment in this case based on the
actions of law enforcement in the gathering, handling and
tampering with evidence in this case.” (Filing No.
150). As an alternative, Defendant has moved the court for an
order “excluding the use of evidence at the time of
trial…” (Filing No. 151). Finally, the defendant
has moved the court “to suppress the use of any
evidence from the ZTE cellphone as law enforcement accessed
that cellphone prior to the issuance of a court-authorized
search warrant for that phone…” (Filing No.
reasons discussed below, each of these motions should be
hearing the testimony, observing the witnesses, and reviewing
the documentary and video evidence, the undersigned
magistrate judge finds the following facts are credible.
background of this case was set forth in the prior Findings,
Recommendation, and Order. (Filing No. 105). Those facts will
be repeated below only as needed for context. The following
facts pertain to the motions currently pending.
was arrested on March 23, 2018. At the time of his arrest,
his cellphone was removed from his pocket before he was
placed in the rear seat of a patrol vehicle. The phone was
then logged into the Lincoln Police Department (LPD) property
room under the number Q1807807, along with a black trash bag,
a roll of white paper towels, a glass Snapple Raspberry tea
bottle, and a pink hair brush.
Justin Armstrong checked the phone out of the property room
on March 28, 2018 for the purpose of obtaining the
International Mobile Equipment Identity (IMEI) number from the
phone and determining whether the phone was previously
reported as stolen. Sergeant Armstrong removed the battery
from the phone to locate the IMEI number displayed under the
battery. After recording the number, he then checked the
phone back into the property room.
March 29, 2018, LPD Investigator Tim Cronin checked out
property number Q1807807 to examine only the trash bag.
Investigator Cronin had no contact with the phone. After
completing the examination, the property was checked back
into the property room.
April 2, 2018, LPD ID Lab Specialist Jim Betts checked the
property out to conduct a forensic exam on the trash bag,
however, he returned the property after being informed a
portion of the property, the phone, was needed for the
warrant. Specialist Betts did not have contact with the
April 3, 2018, United States Magistrate Judge Susan M. Bazis
authorized a warrant for the search of the black ZTE
cellphone. On April 3, 2018, after the warrant was issued,
Sergeant Armstrong checked out the phone to turn it over to
the FBI. FBI Special Agent John Hallock
(“Hallock”) took possession of the phone and took
it to his Omaha office to search it. Hallock was unable to
successfully download the contents of the phone using
Cellebrite software. He instead completed a manual review of
the phone by scrolling through it. With the assistance of FBI
Forensic Examiner John Henri Ewerth, photographs were taken
of the phone's screen using an FBI Cannon EOS Rebel T5
digital camera. Ewerth did not attempt to do a Cellebrite
photographs taken show the phone was in airplane
with a date on the home screen of March 28, 2018. The
metadata from the photos conflict with the
phone's home screen date, instead showing they were taken
using the Cannon EOS Rebel T5 digital camera on April 3,
2018. While manually reviewing the phone, Hallock
inadvertently made eight outgoing calls to a phone number
known to be assigned to an iPhone 8 belonging to
Defendant's alleged co-conspirator. That iPhone 8 was in
the custody of law enforcement at the time.
does not know how the inadvertent phone calls were placed.
Those calls register on the cellphone as being made on March
28, 2018, but Hallock did not have the phone in his
possession until April 3, 2018. Uncovered in the search of
the cellphone were four phone numbers called from the phone
and mobile applications for the Lincoln Police Department,
Lincoln Fire Department, and Lancaster County Sheriff's
Office 911 Dispatch.
motions currently before the court originate from the photos
taken of the cellphone screen described above which bear the
date of March 28, 2018, as well as the eight phone calls
which the phone shows were made on March 28, 2018. This
information, coupled with the chain of custody information
which disclosed Sergeant Armstrong checked out the property,
including the phone, on March 28, 2018, led Defendant to
believe the cellphone was searched on March 28, 2018, before
the warrant was issued. As a ...