471 F.Supp.3d 724
E.D. Va.2020Background
- Defendant Kevin Hewlett was indicted on federal counts of producing and distributing child pornography based on videos found on his devices; investigation began with LCSO searches in May 2019 and continued through September 2019.
- LCSO seized an iPhone XS Max on May 7, 2019 pursuant to a state warrant and later forensically examined it under a second state warrant; that exam produced a video of sexual activity with the minor victim.
- On May 24, 2019 police executed a state residential warrant and seized a Dell laptop; forensic exam of the laptop revealed additional videos depicting sexual conduct with the minor.
- On September 25, 2019 Deputy Vess stopped defendant at the high school parking lot after reports of a suspicious vehicle; defendant possessed two iPhones, consented (per police) to a vehicle search revealing sex toys, and was Mirandized and interviewed.
- Deputy Vess seized the two iPhones without a warrant, obtained state search warrants later that day, and LCSO performed forensic examinations; defendant moved to suppress device evidence and Sept. 25 statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity and scope of state warrants / Rule 41 | State warrants lawful and searches were state actions; evidence admissible | Hewlett: warrants invalid under Fed. R. Crim. P. 41 and searches exceeded warrant scope (child pornography not authorized) | Court: Rule 41 inapplicable because searches were state-only; video constituted evidence of the state offenses listed, so searches within warrant scope — denied |
| Fifth Amendment (invocation of counsel) | Govt: Sept. 25 waiver was voluntary after Miranda; prior remarks did not invoke Miranda protections | Hewlett: He invoked counsel May 24 (and earlier) so Sept. 25 interrogation violated Edwards/Miranda | Court: May 24 call was noncustodial and not an invocation of Miranda; Sept. 25 waiver was valid; Edwards prophylaxis not triggered — denied |
| Sixth Amendment right to counsel | Govt: no formal charges had been filed before Sept. 25; Sixth Amendment had not attached | Hewlett: earlier counsel involvement barred further interrogation | Court: Sixth Amendment had not attached (no adversary proceedings), so no Sixth Amendment violation — denied |
| Fourth Amendment seizure of Sept. 25 iPhones | Govt: investigatory stop supported by reasonable suspicion; vehicle search (consent) lawful; exigent-circumstances / probable cause justified temporary seizure and prompt warrant | Hewlett: stop and warrantless seizure/search of phones violated Fourth Amendment | Court: stop reasonable (reports + circling + evasive behavior); vehicle search supported by consent; factors gave probable cause to seize phones to prevent evidence destruction and warrants were promptly obtained — denied |
Key Cases Cited
- United States v. Hamlin, 540 F.2d 742 (4th Cir. 1976) (Rule 41 applies only where federal officers participated; state warrants may be used when search is a state undertaking)
- United States v. Williams, 592 F.3d 511 (4th Cir. 2010) (discusses handling discovery of child pornography during searches authorized for different offenses)
- McNeil v. Wisconsin, 501 U.S. 171 (1991) (Fifth Amendment right to counsel arises only in custodial interrogation context)
- Edwards v. Arizona, 451 U.S. 477 (1981) (police-initiated custodial interrogation barred after a suspect invokes right to counsel absent valid waiver)
- Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda warnings required for custodial interrogation to protect Fifth Amendment rights)
- Maryland v. Shatzer, 559 U.S. 98 (2010) (14-day break in custody permits re-initiation of interrogation after prior invocation of Miranda)
- Riley v. California, 573 U.S. 373 (2014) (cell phones may be seized to prevent destruction of evidence while obtaining a warrant)
- Illinois v. Wardlow, 528 U.S. 119 (2000) (nervous, evasive behavior is relevant to reasonable-suspicion analysis)
- Terry v. Ohio, 392 U.S. 1 (1968) (brief investigatory stops require reasonable, articulable suspicion)
- Navarette v. California, 572 U.S. 393 (2014) (reasonable-suspicion standard requires particularized, objective basis)
- United States v. Clyburn, 24 F.3d 613 (4th Cir. 1994) (evidence obtained under valid state warrant admissible in federal prosecution)