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United States v. Javat

United States District Court, S.D. Florida

August 8, 2019



          Donald M. Middlebrooks United States District Judge

         THIS CAUSE is before the Court on Magistrate Judge Chris McAliley's Report and Recommendation (DE 287) recommending that I grant Defendant Byramji Moneck Javat's Motion to Suppress Electronic and Documentary Evidence (DE 177). The United States filed partial objections to the Report on August 6, 2019. (DE 301). Javat filed partial objections on the same date. (DE 302). I have carefully considered the Report, the written submissions of the parties, applicable law, and the record as a whole. For the reasons set forth below, I will adopt Judge McAliley's Report and Recommendation and grant Javat's motion to suppress.


         On August 7, 2018, Javat and five co-defendants were charged by way of an Indictment with wire fraud, wire fraud conspiracy, theft of pre-retail medical products, and conspiracy to obtain pre-retail medical products by fraud and deception. (DE 3). On August 18, 2019, Special Agent Eric Flagg with the Food and Drug Administration's Office of Criminal Investigations (“FDA/OCI”) arrested Javat at Dulles International Airport after being briefed on the investigation by the case agent, Justin Fielder, also of FDA/OCI. Flagg approached Javat at the airline ticket counter and explained that agents had a warrant for his arrest. Flagg had previously seen Javat enter the airport with a roller suitcase and a messenger bag. At the time of arrest, the suitcase was at Javat's feet, and the messenger bag was either over his shoulder or resting on top of his suitcase.

         Flagg asked Javat for his electronics and Javat removed a Samsung smartphone from a pocket and turned it over to agents. Javat said he had a laptop computer in his messenger bag and handed the bag to Flagg. Flagg took the phone, messenger bag, and Javat's suitcase and then escorted Javat outside the terminal and into Flagg's car. Flagg put the items he obtained from Javat in the trunk. Javat was transported to the jail.

         At an unknown time thereafter, Flagg searched Javat's messenger bag and found a laptop computer and three additional Samsung smartphones. The date of the search is not known, but it was apparently conducted before August 29, 2018, the date on which an inventory was prepared. On September 5, 2018, in response to a request from Javat's wife, Javat's belongings were returned to her, with the exception of the laptop and phones. Flagg also provided Javat's Virginia lawyer with a copy of the Inventory of Evidence he had prepared, which listed the computer and four phones. These items were later sent to Fielder, the case agent, in Miami. At the evidentiary hearing, the government could not identify which phone was seized from Javat's person and which three were found in the messenger bag.

         On September 7, 2018, twenty days after Javat's arrest, Agent Fielder obtained a search warrant for the five electronic devices. Upon forensic examination of these items, evidence was seized which the government intends to utilize at trial. Fielder testified that the delay in obtaining a warrant was attributable to other demands on his time, including work related travel, the arrests of Javat's codefendants, and various supervisory duties.


         Javat filed a motion to suppress the laptop and phones, and all evidence derived therefrom. In resolving Javat's motion, Magistrate Judge McAliley considered the following issues: (1) whether the government's warrantless search of Javat's messenger bag, which led to the discovery and seizure of his electronic devices, fell outside the scope of the search incident to arrest doctrine, and (2) whether the government unreasonably delayed in applying for a search warrant to search the devices themselves. After ordering supplemental briefing, United States Magistrate Judge Chris McAliley held a hearing, and ultimately issued a Report and Recommendation, recommending that Javat's Motion to Suppress be granted. (DE 287).

         A. Search Incident to Arrest

         For its position that Javat's motion should be denied, the government relies upon the search incident to arrest exception to the warrant requirement. Judge McAliley's Report succinctly summarizes applicable Supreme Court precedent on this doctrine: Incident to arrest, officers may search where an arrestee might reach, and seize any weapons or evidence in order to prevent its concealment or destruction. Chimel v. California, 395 U.S. 752 (1969). Such a search (confined to an area within the arrestee's immediate control) may be made regardless of whether probable cause exists to believe that the person arrested has a weapon or is about to destroy evidence. United States v. Robinson, 414 U.S. 218 (1973). Moreover, the search incident to arrest doctrine encompasses a later search of an arrestee who is in custody, and things in his immediate possession. United States v. Edwards, 415 U.S. 800 (1974). However, “warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the search is remote in time or place from the arrest, or no exigency exists.” United States v. Chadwick, 433 U.S. 1 (1977).

         In Javat's case, agents seized the messenger bag at the time of arrest, but waited until later to search it.[1] Although it is not known, on this record, when exactly Agent Flagg searched the bag, it is not disputed that when the search ultimately occurred, the bag was in the exclusive control of the government, and Javat was not in a position to gain access to it. Thus, the issue presented on these facts is whether agents' subsequent search of Javat's messenger bag still fell within the scope of a lawful search incident to arrest. I agree with Judge McAliley's conclusion that it did not.

         I see no meaningful distinction between Javat's case and the facts presented in Chadwick. In Chadwick, officers had probable cause to believe that a footlocker which the defendants were traveling with on an Amtrak train contained narcotics. Probable cause was based upon a canine alert, visual examination of the footlocker (it seemed too heavy for its size), and the presence of talcum powder (a substance often used to mask the odor of marijuana). Officers arrested the defendants and seized the footlocker. A search of one of the defendants at that time yielded keys to the footlocker. Officers transported the defendants and the footlocker to a federal building and subsequently opened the footlocker without a warrant, finding marijuana. This search of the footlocker occurred approximately an hour and a half after the arrests. The Court held that the search fell outside the lawful temporal scope of a search incident to arrest. In this case, Javat's messenger bag was searched under very similar circumstances: Javat had been arrested, thereby separated from the bag, which was then transported by agents and searched only later, at a time when agents would have had no reason to believe there was any imminent need to protect safety or prevent destruction or concealment of evidence.

         In its objections to the Report, the government argues that it would have been lawful for agents to search the messenger bag at the scene of Javat's arrest in the airport, at the time they took Javat into custody. I agree, but this is not what agents did. The government goes on to assert that since agents knew that the bag contained a laptop, it was not necessary for them to open it at the scene and search it, therefore Chadwick should not apply here.[2] According to the government, Flagg's actual knowledge that the bag contained a laptop, premised upon Javat's informing them of that fact, “was the functional equivalent of a hands-on search ...

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