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United States v. Palms

United States District Court, N.D. Oklahoma

November 7, 2019




         Now before the Court is Defendant's Motion to Suppress Evidence pursuant to a State Search Warrant and Brief in Support (Dkt. # 26). Defendant argues that evidence was seized from his cell phone based on a facially invalid warrant, and he asks the Court to exclude all evidence gathered during a search of his cell phone. Dkt. # 26. Plaintiff responds that the search warrant was sufficiently particular as to the place to be searched and the items to be seized and, even if the warrant is invalid, the good faith exception is applicable. Dkt. # 33. The Court set defendant's motion for a limited evidentiary hearing “concerning the scope of the search of his cell phone that resulted from a search warrant obtained by the Tulsa Police Department (TPD).” Dkt. # 54. Plaintiff offered the testimony of two TPD officers and the Court finds that it has a sufficient evidentiary record to rule on defendant's motion to suppress.


         On June 6, 2019, a grand jury returned an indictment (Dkt. # 2) charging defendant with sex trafficking by means of force, fraud, or coercion in violation of 18 U.S.C. § 1591 (count one), obstruction or attempted obstruction of enforcement of § 1591 (count two), and retaliation against a witness, victim, or informant in violation of 18 U.S.C. § 1513 (count three). The charges stem from defendant's arrest on November 20, 2018 by an undercover TPD officer who was investigating potential human trafficking of young women in the commercial sex industry. TPD Officer Justin Oxford[1] set up a “date” with a prostitute who he believed could be a minor and a victim of human trafficking, and he agreed to meet the prostitute at the Peoria Inn in Tulsa, Oklahoma. Dkt. # 26-2, 2. When Oxford arrived at the Peoria Inn, he observed a black male sitting in a car in the parking lot, and he believed that the black male was conducting surveillance of Oxford as he approached the hotel room where he had agreed to meet the prostitute. Id. Oxford made contact with the prostitute, M.W., and arrested her after she agreed to perform a commercial sex act. Id. Oxford directed supporting officers to arrest the black male in the hotel parking lot, and the black male was subsequently identified as Ramar Palms. Dkt. # 33, at 2.

         M.W. met Palms while she was a bartender at the Ambassador Lounge in Tulsa, and they began dating. Dkt. # 26-2, at 2. M.W. alleges that Palms took her to a hotel room and forced her to work as a prostitute. Id. M.W. told Oxford that Palms made her go on at least five “dates” every night and that he would provide security for her. Id. Palms allegedly assisted M.W. with posting advertisements for prostitution on websites, and he would make her pay to post the advertisements to distance himself from the prostitution. Id. M.W. told Oxford that Palms physically abused her if she did not generate enough business. Id. Palms kept note cards with contact information for customers of other prostitutes who had worked for him, and Palms would make M.W. call past customers on slow nights. Id.

         Police officers seized Palms' phone when he was arrested and Oxford prepared an affidavit for search warrant (Dkt. # 26-2) to gather evidence of human trafficking from the cell phone. The affidavit states that the cell phone was in the possession of the TPD and the cell phone belonged to Palms. Dkt. # 26-2, at 1. Oxford sought the issuance of a search warrant to recover:

all digital evidence stored on removable storage and magnetic or electronic data contained in the contents of such tablet, cell phone, laptop, camera and/or memory cards, including electronic data storage devices, which in whole or in part contain any and all evidence related to the subscriber information from the SIM (subscriber identification module) and/or ownership information for the device, electronic mail, call logs, contacts, calendars, location services information, global positioning (GPS) data and information, internet chat communications, browser cache, auto-complete forms, stored passwords, instant messaging, SMS (short message service), MMS (multimedia message service), social media account data and information, application data and information, documents, photographs, images, graphics, pictures, videos, movies, audio or video recordings, any associated metadata, and any recorded documents depicting communications, correspondence or storage of these communications, files, graphics, documents, or other data related to the crime of Human Trafficking.

Id. The affidavit also seeks authorization to seize any evidence or data stored in “cloud” based accounts. Id. Oxford stated that recovery of data from a cell phone is complex and requires outside assistance, and he requested permission to take the cell phone outside of the jurisdiction for a forensic examination. Id. at 3. The warrant was issued by Tulsa County District Court Special Judge April Seibert on November 30, 2018. Dtk. # 26-1, at 2.

         Defendant's cell phone was turned over to the special investigations division (SID) of TPD to obtain a forensic analysis of the cell phone. Officer Brian Booth is a member of SID who specializes in downloading data from seized cell phones, and he is certified to use various techniques for downloading data. Booth testified he initially takes a photograph of the evidence, takes the cell phone off any network, and checks the model number of the cell phone. Booth also reviews the consent form or search warrant before attempting to extract any information or data from the cell phone. Booth plugs the cell phone into a machine to extract information from the cell phone, and he used a program called Cellebrite to perform the extraction. Cellebrite can perform three separate types of extraction, which he describes as logical, file, or physical extractions. He testified that logical and file extractions were more limited in nature, but these methods were not successful in this case and could not have obtained all information authorized by the warrant. Booth relied on the third type of extraction, known as physical, to retrieve data from defendant's cell phone, and this type of extraction pulled all information that could be obtained from the device, including content and metadata. Cellebrite prepared a report of the data gathered from the cell phone, and the data could be searched by file type (i.e. - text message, e-mail) and by using search terms. The warrant in this case also authorized the collection of cloud data, and this data was collected and stored as part of the search. The cloud data was contained in a separate report. Booth testified that he was not the investigating officer and he did not attempt to search any of the reports for relevant evidence. Instead, he used two other programs to conduct extractions to verify the accuracy of the data pulled from the phone, and he was also able to compare information on defendant's actual phone to verify the accuracy of the reports.

         Oxford testified at the evidentiary hearing on the limited topic of his review of the reports containing the data extracted from defendant's cell phone. Oxford received multiple reports after data was extracted from the phone, and he reviewed the Cellebrite report of the physical data from the phone. Oxford did not look at the report containing the cloud data. Oxford explained that he could select what type of data from the report that he wished to search, such as text messages, photographs, or e-mails, and he could use search terms within those broader categories to expedite his search. Oxford limited his search of the cell phone data to evidence of human trafficking, and did not encounter evidence of any unrelated crimes during his search. He did find personal communications of defendant during his search, but he immediately moved on when he found information outside the scope of the search warrant. Oxford learned from M.W. that her relationship with defendant began in September or October 2018, and he limited his search to communications that took place during the relevant time frame of September 2018 to November 20, 2018. Oxford prepared an officer's summary of what information he reviewed from the Cellebrite report, but he did not detail his methodology or specific dates of all communications that he reviewed in the report. Instead, it appears that his summary contains a list of potentially incriminating evidence against defendant that was found on his cell phone.[2] Oxford testified that he came across information that could be subject to attorney/client privilege during his review. Oxford immediately stopped searching and notified the Assistant United States Attorney (AUSA), Christopher Nassar, before resuming his search. Oxford reviewed short message service (SMS), multimedia message service (MMS), e-mails, and photographs from the relevant time period. Oxford has subsequently been reassigned to a new job, and he does not know if anyone else at TPD has reviewed the reports generated from defendant's cell phone.


         Defendant has filed a motion to suppress all evidence gathered from his cell phone, and he raises three general arguments in support of his motion. First, he argues that “document titled ‘Search Warrant'” is not actually a warrant and, even if the Court finds that it is a warrant, the document does not specify with sufficient particularity what evidence is to be seized. Dkt. # 26, at 4-8. Second, he argues that a forensic search of the entire contents of his cell phone exceeded the scope of the search authorized by the warrant. Id. at 9-10. Third, he argues that the good faith exception does not apply should the Court find that the warrant is facially invalid. Id. at 11-12. Plaintiff responds that the warrant complied with all of the requirements of the Fourth Amendment, and the good faith exception would apply if the Court found any technical error with the indictment. Dkt. # 33, at 4-9. Plaintiff also argues that the Tenth Circuit has issued guidance concerning the permissible scope of a forensic search of an electronic device, and it was reasonable for the forensic examiner to prepare a report concerning the complete contents of defendant's cell phone. Id. at 10-11.


         Defendant argues that the document that is styled as a “search warrant” fails to meet the basic requirements for a search warrant, because the document fails to specify the crime for which probable exists. Dkt. # 26, at 3. He further argues that the document fails to specifically identify the place to be searched, and it fails to include any language “commanding” or “authorizing” a search. Id. at 4. Plaintiff responds that there is no technical or special language required for a document ...

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