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United States v. Dortch

United States District Court, D. Nebraska

September 20, 2019

JOSHUA Z. DORTCH, Defendant.



         Defendant 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. 152).

         For the reasons discussed below, each of these motions should be denied.


         After hearing the testimony, observing the witnesses, and reviewing the documentary and video evidence, the undersigned magistrate judge finds the following facts are credible.

         The 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.

         Defendant 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.

         Sergeant 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)[1] 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.

         On 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.

         On 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 phone.

         On 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 download.

         The photographs taken show the phone was in airplane mode[2] with a date on the home screen of March 28, 2018. The metadata[3] 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.

         Hallock 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[4] for the Lincoln Police Department, Lincoln Fire Department, and Lancaster County Sheriff's Office 911 Dispatch.

         The 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 ...

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