United States District Court, D. Oregon
OPINION AND ORDER
ANN AIKEN, District Judge.
Defendant is charged with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) (1), possession of methamphetamine in violation of 21 U.S.C. § 844, and felon in possession of a firearm in violation of 18 U.S.C. § 922 (g) (1). Defendant previously moved to suppress all evidence obtained directly and indirectly from a search following a traffic stop, arguing that the stop violated his rights under the Fourth Amendment. The court denied the motion and the case was scheduled for trial. The government subsequently sought and obtained a second search warrant to search several cellular phones seized during the stop. Defendant now seeks to suppress evidence obtained as a result of the second search of the phones. The motion is denied.
On April 10, 2012, the driver of a vehicle in which defendant was a passenger was stopped for a traffic violation. Ultimately, defendant was asked to step out of the vehicle; when he did, a prescription bottle containing marijuana fell out of the vehicle and onto the ground. State troopers searched defendant and found a pocket knife in his pants pockets and almost one ounce of methamphetamine in his sweatshirt. The troopers also found a small tin containing methamphetamine on the ground, packaging material and a small spoon. Four cellular phones were also recovered and seized as a result of the traffic stop.
On May 1, 2012, defendant was charged with possession with intent to distribute methamphetamine. The same day, ATF Special Agent Greg Johanson obtained a search warrant for the cellular phones from U.S. Magistrate Judge Thomas M. Coffin.
Pursuant to the warrant, law enforcement officers were required to "perform an initial search of the original digital Device or image within a reasonable amount of time not to exceed 120 days from the date of the execution of the warrant." Def. Ex. 1 at 42, ¶ 25c. The warrant further provided:
[i]f, after conducting the initial search, law enforcement personnel determine that the Device contains any data falling within the list of items to be seized pursuant to this warrant, the government will retain the Device to, among other things, litigate the admissibility/authenticity of the seized items at trial, ensure the integrity of the copies, ensure the adequacy of chain of custody, and resolve any issues regarding contamination of the evidence.... The government shall complete the search of the Device within 180 days of the date of execution of the warrant. If the government needs additional time to complete the search, it may seek an extension of the time period from the Court within the original 180-day period from the date of the execution of the warrant.
Def. Ex. 1 at 42-43, ¶ 25c. The warrant also instructed:
[i]f at the conclusion of the search, law enforcement personnel determine that particular files or file folders on the Device do not contain any data falling within the list of items to be seized pursuant to the warrant, they will not search or examine those files or folders without further authorization from the Court.
Def. Ex. 1 at 43, ¶ 25d. Finally, the warrant stated:
[i]f the Device does not contain any data falling within the list of items to be seized pursuant to this warrant, the government will return the Device to its own within a reasonable period of time following the search of the Device.
Def. Ex. 1 at 43, ¶ 25e.
On May 8, 2012, the government executed the first search warrant. The cellular phones, identified as E-10, E-11, E-12 and E-14, were sent to Oregon State Police Sergeant Dan Conner for analysis. On May 23, 2012, Sgt. Conner examined the four phones using Cellebrite UFED software. See Johanson Decl. Ex. 1. Of these phones, E-10 and E-11 belonged to defendant.
The phone identified as E-11 was protected by a password, and the Cellebrite software could not be used. Id . Ex. 1. However, the S.D. card on E-11 contained multiple folders and sub-folders, which allegedly included an image of a handgun superimposed over a picture of defendant. See Doc. No. 99 (Ex. 31). The search of E-10 revealed a contact list; however, no text messages or call logs were ...