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United States v. Javat

United States District Court, S.D. Florida

July 30, 2019




         Defendant Byramji Moneck Javat (“Javat”) has filed a Motion to Suppress Electronic and Documentary Evidence, (ECF No. 177), which the Honorable Donald M. Middlebrooks has referred to me, (ECF No. 178). The Motion is fully briefed (ECF No. 228, 241, 260, 261), [1] and the Court held an evidentiary hearing on July 9, 2019.[2]

         Javat's motion, as modified by his reply memorandum, makes two Fourth Amendment claims: first, that the government's warrantless seizure from Javat of his electronic devices, at the time of his arrest, was not made lawful by the search incident to arrest doctrine, [3] and second, that the government unreasonably delayed applying for a search warrant to search those devices. Two witnesses testified for the government at the hearing: Eric Flagg (“Flagg”)[4], and Justin Fielder (“Fielder”), both of whom are Special Agents with the Food and Drug Administration's Office of Criminal Investigation (“FDA/OCI”).

         For the reasons that follow, I recommend that the Court grant Javat's Motion, and I summarize my reasoning here. First, I conclude that the warrantless search of Javat's messenger bag, at some unknown time after his arrest, was in violation of the Fourth Amendment, and that this requires that Javat's electronic devices, and all evidence seized from them, and evidence derived therefrom, be excluded from evidence in this prosecution. If the Court accepts this recommendation, this alone supports the suppression of evidence.

         I nonetheless proceed to Javat's second and alternative argument, of unreasonable delay, which requires the Court to balance the government's and Javat's interests. If the Court adopts my analysis and conclusion on Javat's first argument, then, as I explain in Section II (B), I believe this requires the conclusion that the government's twenty-day delay in securing a search warrant for Javat's devices, was constitutionally unreasonable, and this would be a second justification for the exclusion of evidence. If, however, the Court were to not agree with my conclusion on the first argument, this would alter the balancing analysis, such that the twenty-day delay in securing a search warrant was constitutionally reasonable, and would not justify suppression.

         I. Factual Findings

         On August 7, 2018, an Indictment was filed with this Court under seal that charged Javat, and five co-defendants, with wire fraud and conspiracy to commit wire fraud, theft of pre-retail medical products and conspiracy to obtain pre-retail medical products by fraud or deception. (ECF No. 3).[5] The Clerk of the Court issued arrest warrants for the defendants, also under seal, the same day. (ECF No. 4).

         A. Javat's Arrest and the Seizure of his Electronics

         Agent Fielder, who is the case agent on this matter, coordinated the arrests of the defendants. The government knew that Javat resided in the United Arab Emirates, (ECF No. 3, p. 2) and believed that he traveled to the United States only a few times a year. Once the arrest warrants were issued, Agent Fielder tasked another agent with researching Javat's location. Fielder was surprised to learn only days later, on or about August 16 or 17, 2018, that Javat was in the United States, and had tickets for a flight that would depart the country on Saturday, August 18, 2018, from the Dulles International Airport, in the metropolitan Washington, D.C. area.

         Fielder asked for assistance from the FDA/OCI Metropolitan Washington Field Office, to arrest Javat at the Dulles airport, and Agent Flagg was assigned the task. Flagg knew nothing about the investigation before that time. Fielder “kind of gave him a brief overview, ” (Tr. at 65), sent Flagg a photo of Javat, and his travel information and the arrest warrant.[6] In preparation, Flagg contacted the Airport Authority police department to arrange for the assistance of uniformed officers.

         On Saturday August 18, 2018, at about 8:30 am, Flagg and his FDA/OCI colleague, Agent Kurisky, arrived at the Dulles airport where they met two uniformed airport officers.[7] Javat had tickets with Porter Airlines, and that ticket counter, at the departure level of the airport, was closed at the time. Soon after 9:00 am, Flagg saw Javat and his wife and two children arrive at the Porter Airline ticket counter. They were the only travelers at the ticket counter. At Flagg's request, the uniformed officers approached Javat and confirmed his identity. At that point Flagg walked over to Javat, identified himself and displayed his credentials, and told Javat that he had a warrant for his arrest.

         Flagg saw that Javat had entered the airport with a roller suitcase and a messenger bag. Javat's wife and children also had luggage with them. At the time of his arrest, Javat's suitcase was at his feet, and his messenger bag was either over his shoulder, or resting on top of his suitcase. His family's luggage was also nearby, within Javat's reach. Flagg asked Javat for his electronics. Javat, who was very cooperative, removed a Samsung smartphone from either his pants or blazer pocket, and handed it to Agent Kurisky. Javat said that he had a laptop computer in his messenger bag, and he handed the bag to Flagg. Flagg took the cellphone, messenger bag, and Javat's suitcase, and escorted Javat to the curb outside the airport terminal, where he patted him down, placed Javat inside his car, and put the luggage in the trunk.[8] Flagg did not ask for or search Javat's family, or their luggage, nor did he search Javat's suitcase or messenger bag at the airport. He had Javat give his wallet and watch to his wife, before they left the airport. (Tr. at 106-7). Flagg gave his business card to Javat's wife, and transported Javat to the jail.

         Sometime later, and Flagg did not say when, he searched Javat's messenger bag and suitcase. It was only then that he learned that three additional Samsung smartphones were inside the messenger bag. (Tr. 100-101).[9] On September 4, 2018, Mrs. Javat emailed Flagg, with a copy to the lawyer who was representing Javat in Virginia at that time, to ask for the return of her husband's belongings. (Tr. at 108-09). The next day, on September 5, 2018, Flagg delivered Javat's belongings to the office of the Virginia attorney, with the exception of the laptop and four cell phones, which he retained as evidence. (Tr. at 110). He also provided the attorney a copy of the Inventory of Evidence he had prepared, that listed the five electronic devices. Later, at Fielder's direction, Flagg arranged to ship the cell phones and the laptop to Fielder, in Miami. At the evidentiary hearing, the government was unable to identify which Samsung cellphone was seized from Javat's person, and which three Samsung cellphones were found in his messenger bag. Tr. at. 60.[10]

         B. Preparation of the search warrant

         On September 7, 2018, twenty days after Javat's arrest, Agent Fielder presented an application for a search warrant for Javat's five electronic devices to a Magistrate Judge of this Court. That Judge issued a search warrant for the devices that same day.

         During this period of time Agent Fielder served as the Assistant Special Agent in Charge of the local FDA/OCI field office, located in Plantation Florida. As a supervisor, Fielder's responsibilities included overseeing other agents' investigations, and approving their reports and their leave. The field office was short-staffed at that time and applicants for open law enforcement positions were being interviewed. Fielder did not participate in the interviews, but he did review some resumes. Thus, during this twenty day period, some of Fielder's time was devoted to his supervisory duties. In addition, Fielder had other cases or investigations, aside from this one, that he worked on in this timeframe.

         Javat was the first of the defendants in this case to be arrested, and on the day of his arrest Fielder began to coordinate the arrests of the other five defendants. This required Fielder to communicate with other law enforcement officers about “manpower, logistics and things of that nature” and required him to “review reports.” (Tr. at 36). On Monday, August 20, 2018, Defendants Luis Soto and Emanuel Daskos were arrested in this District and had their initial appearances before the Miami Division of this Court. That same day Defendant James Sipprell was arrested in the Northern District of Georgia, where he resides. Fielder interviewed Defendant Sipprell by telephone at the time of his arrest.

         On Tuesday, August 21, 2018, Fielder travelled to the Eastern District of Virginia District Court to attend Javat's pretrial detention hearing, which took place the following day, and which resulted in an order that Javat be held without bond.[11] Fielder prepared, with both the lead prosecutor here, and the Virginia Assistant U.S. Attorney who handled the hearing, to testify at that hearing, although as it turned out, Fielder did not testify. Fielder traveled back to this District on Wednesday, August 23, 2018, and then focused on the arrest of the remaining defendants, Sunil Chopra and William Armando, who were in Chicago and California, respectively.[12] Fielder had first spoken with Chopra and Armando by telephone on Monday, August 20, 2018, and advised them of the arrest warrants. This led Fielder to speak with their attorneys to coordinate the defendants' surrenders and initial appearances before this Court, which happened on Monday, August 27, 2018. Fielder met both defendants at the Miami courthouse when they surrendered and he attended their initial appearances.

         When the Defendants were arrested, this triggered Fielder to do a number tasks on this case. He prepared reports of arrests and communicated with other arresting agents to get their reports. He began a review of all the evidence and reports generated during the investigation to collect information for upcoming discovery production, and discussed this, among other matters, with the lead Assistant U.S. Attorney. These discussions included Fielder attending meetings at the U.S. Attorneys Office. Fielder knew that one of the defendants was involved in a lawsuit and, to avoid the possibility of the prosecution team viewing that defendant's privileged communications, Fielder contacted other FDC/OCI agents to identify who could participate in a taint review team, and then put those agent(s) in touch with the U.S. Attorneys Office.

         Fielder began to prepare his search warrant application on or about Wednesday, August 29, 2018. He was the only agent knowledgeable enough about the case to be able to prepare the application.[13] To prepare the search warrant package, he reviewed documents in the case, including emails from the defendant, that the government acquired in the course of its investigation. Fielder also solicited advice from other agents who had more experience than he did with the drafting of search warrant applications for electronic devices. As he drafted the warrant application, Fielder had discussions regarding where the devices would be forensically searched-here, or in the Washington, D.C. area-and it was decided that the search would take place here. In the process Fielder realized that the devices would have to be in this District, before he could seek a search warrant from this Court, [14] and he arranged to have them sent here, which took a couple days.

         Fielder emailed his proposed search warrant application to the lead Assistant U.S. Attorney on Monday, September 3, 2018, which was Labor Day, and a federal holiday when Fielder's office was officially closed. He believes the Assistant U.S. Attorney made some changes to his draft. It was three days later, on Friday, September 7, 2018, that Fielder presented the warrant application to the Court, and as noted, the Court issued the warrant that same day. The government later made a forensic examination of those devices, and according to Javat's Motion, the government seized “millions of communications and documents, which the government has listed as evidence in this prosecution.” (ECF No. 177 at 4).

         II. Legal conclusions

         In his Motion, Javat asks the Court to exclude from evidence the laptop computer and the four cellphones the government seized from him at the Dulles Airport, along with any evidence the government later seized when it searched those devices, or derived from that evidence. Javat makes two arguments: first, that the warrantless seizure of those devices was not justified by the search incident to arrest doctrine-the only exception to the Fourth Amendment warrant requirement that the government relies upon-and second, that the government unreasonably delayed securing a search warrant for those devices. For the following reasons, I find that both arguments have merit and call for the exclusion from evidence of Javat's electronic devices, and the evidence seized from them.

         A. Warrantless Search of Javat's Messenger Bag was Unlawful

         It has long been the law that the Fourth Amendment to the United States Constitution requires that the government must have a search warrant before it can search and seize, unless it can demonstrate the application of one of the recognized exceptions to the Fourth Amendment warrant requirement. Arizona v. Gant, 556 U.S. 332, 338 (2009) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). The government must do so by a preponderance of the evidence.[15] Importantly, “[t]he ultimate touchstone of the Fourth Amendment is reasonableness.” Riley v. California, 134 S.Ct. 2473, 2482 (2014) (citation and quotation marks omitted). The Supreme Court, in a series of decisions that began with dictum in Weeks v. United States, 232 U.S. 383 (1914), has recognized that a warrantless search incident to a lawful arrest satisfies the reasonableness requirement of the Fourth Amendment, and is thus an exception to the warrant requirement.

         The Court has refined the scope of that exception over time. The first such decision was Chimel v. California, 395 U.S. 752 (1969), in which officers arrested the defendant in his home, pursuant to an arrest warrant, and then thoroughly searched the entire house. The Court found that that search was unlawful and wrote the following:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape....In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule....There is ample justification, therefore, for a search of the arrestee's person and the area within his immediate control - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.

Id. at 763. The Court thus established that incident to arrest, officers may search where an arrestee might reach, and seize any weapons or evidence. Because the search in Chimel went “far beyond the petitioner's person and the area from within which he might have obtained either a weapon or .... evidence” the Court found that the search was unreasonable under the Fourth Amendment and unlawful. Id. at 768.

         Later, in United States v. Robinson, 414 U.S. 218 (1973), the Court made clear that this search may be made whether or not there is probable cause to believe that the person arrested has a weapon or is about to destroy evidence. This is because the “potential dangers lurking in all custodial arrests make warrantless searches of items within the ‘immediate control' area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved.” United States v. Chadwick, 433 U.S. 1, 14-15 (1977) (quoting Robinson).

         The Supreme Court in Chimel, thus set forth the physical scope of a lawful warrantless search incident to arrest, and in Robinson, the Court made clear that the government need not justify the purpose for its search incident to arrest, if the search fell within that scope.

         In United States v. Edwards, 415 U.S. 800 (1974), the Court found that the exception encompassed the seizure and search of the defendant's clothing at the jail, approximately ten hours after his arrest. The defendant there was lawfully arrested, at about 11:00 p.m., for attempting to break into the post office and he was transported to the local jail where he was held. As the defendant was being jailed, investigators learned that the intruder had pried open a window, leaving paint chips on the window sill. The next morning police purchased clothing for the defendant which they gave to him at the jail, and they seized, without a warrant, the clothing the defendant was wearing at the time of his arrest. Later examination of the clothing identified paint chips that matched those found at the window.

         The Edwards Court found that it was reasonable to search the defendant at the jail without a warrant for “any evidence of the crime in his immediate possession, including his clothing.” Id. at 805. The Court noted that it was only after the arrest that the police

had probable cause to believe that the articles of clothing he wore were themselves material evidence of the crime....But, it was late at night; no substitute clothing was then available for Edwards to wear, and it would certainly have been unreasonable for the police to have stripped respondent of his clothing and left him exposed in his cell throughout the night. When the substitutes were purchased the next morning, the clothing he had been wearing at the time of arrest was taken from him and subjected to laboratory analysis. This was no more than taking from respondent the effects in his immediate possession that constituted evidence of the crime. This was and is a normal incident of custodial arrest.

Id. (citations omitted).[16]Edwards thus established that the search incident to arrest doctrine encompasses a later search of an arrestee who is in custody, and ...

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