OPINION AND ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE
I. INTRODUCTION
Defendant Maurice Gholston, along with co-Defendant Robert Metcalf, is charged in a March 21, 2013 first superseding indictment with one count of interference with commerce by robbery, in violation of 18 U.S.C. § 1951(a), and one count of use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Through the present motion filed on October 28, 2013, Defendant seeks to suppress evidence obtained during a search, pursuant to a warrant, of the contents of a cell phone found in Defendant’s possession at the time of his arrest.
On December 5, 2013, the Court held a hearing on Defendant’s motion to suppress. For the reasons stated on the record at the December 5 hearing, as supplemented by the rulings below, the Court denies Defendant’s motion.
II. FACTUAL BACKGROUND
On February 12, 2013 at approximately 10:24 p.m., two masked men entered a BP gas station located at 1781 South Fort Street in Detroit, Michigan. One of the men was armed with a long gun. After gaining access to the enclosed cashier area of the gas station and pointing the gun at the cashier, the robbers ripped the cash register off the counter, and the two men then fled the location.
Following this incident, the gas station cashier was interviewed by the Detroit police, and he identified one of the robbers as an individual he knew as “Reese” who regularly visited the gas station. In addition, law enforcement officers reviewed security footage captured by cameras inside, the gas station. Through their investigation, the Detroit police determined that “Reese” was Defendant Maurice Gholston, and Defendant was arrested by Detroit police officers on February 21, 2013, nine days after the gas station robbery. At the time of his arrest, Defendant had a T-Mobile cellular telephone in his possession, and the arresting officers seized this cell phone but did not examine its contents at the time. Defendant was held in custody until February 25, 2013, and was then released following a detention hearing, but his cell phone was not returned to him.
On March 4, 2013, FBI Task Force Officer (“TFO”) Anthony Gavel submitted an application for a search warrant to Magistrate Judge David R. Grand, seeking authorization to search the cell phone seized from Defendant for evidence relating to the BP gas station robbery.
Magistrate Judge Grand issued the requested search warrant on the date it was sought, March 4, 2013, and federal officers proceeded to search the contents of the cell phone found in Defendant’s possession on the date of his arrest. According to the Government, this search revealed text messages sent to co-Defendant Metcalf and accompanying images created on the date of the robbery, February 12, 2013, that “depict[ed] [Defendant] in masks that appear to be the same as those worn by the perpetrators of the robbery.” (Gov’t Response Br. at 4.) Defendant now seeks to suppress the evidence obtained in this search of his cell phone.
III. ANALYSIS
A. The Seizure of Defendant’s Cell Phone Incident to His Arrest, and the Later Search of This Cell Phone Pursuant to a Warrant, Did Not Violate Defendant’s Fourth Amendment Rights.
It is well-settled that a police officer may perform a warrantless search of an individual incident to a lawful custodial arrest. See United States v. Robinson,
As the parties tacitly acknowledge in their briefs, no court has directly addressed the specific issues raised in Defendant’s motion, at least under facts similar to those presented here. Instead, the Government proceeds by analogy to case law — albeit none that is binding upon this Court — affirming an arresting officer’s authority to seize a cell phone and conduct a warrantless search of its contents incident to a lawful arrest. In United States v. Murphy,
Like Defendant here, Murphy did not deny that there was probable cause for his arrest. Instead, he first challenged the district court’s finding that the cell phone was seized from his person during a search incident to his arrest, but the Fourth Circuit found that the district court had a reasonable evidentiary basis for this conclusion.
The evidence establishes that the initial search of the cell phone occurred in Murphy’s presence and at his direction, after he indicated to [a state trooper] that the phone contained phone numbers for people who could corroborate his identity. Another search of the cell phone occurred at the Sheriff’s Department during the course of the inventory search, when a supervising officer noted that the cell phone contained potentially incriminating information and directed [a trooper] to retain the cell phone as evidence in the case. Qf course, once the cell phone was held for evidence, other officers and investigators were entitled to conduct a further review of its contents, as [the DEA agent] did, without seeking a warrant. See United States v. Edwards,415 U.S. 800 , 803-04,94 S.Ct. 1234 ,39 L.Ed.2d 771 (1974). For these reasons, we conclude that the district court committed no error, plain*710 or otherwise, in refusing to suppress the contents of Murphy’s cell phone.
As the Government observes, Murphy is only one of a number of cases — albeit none decided by the Sixth Circuit — approving the warrantless seizure and at least limited search of a cell phone incident to a lawful arrest. See, e.g., United States v. Flores-Lopez,
In response, Defendant notes as a threshold matter that the question “whether law enforcement may conduct a war-rantless search of a cell phone is hardly a settled issue.” (Defendant’s Reply Br. at 5-6 (collecting cases).) And, indeed, there are several recent decisions expressing reservations about broad warrantless searches of the contents of a cell phone incident to an arrest. The First Circuit has observed, for instance, that such a rule seemingly “would give law enforcement broad latitude to search any electronic device seized from a person during his lawful arrest, including a laptop computer or a tablet device such as an iPad,” and that a warrantless search of an electronic device presumably “could encompass things like text messages, emails, or photographs.” United States v. Wurie,
Yet, while the legality of warrantless searches of cell phones incident to arrest remains a point of discussion and disagreement among the courts and an open question in this Circuit, it ultimately is unnecessary for this Court to weigh in on this subject. In this case, after all, there was no warrantless search of Defendant’s cell phone incident to his arrest; rather, the contents of Defendant’s phone were first examined nearly two weeks after his arrest, upon TFO Gavel’s procurement of a warrant authorizing this search. Thus, even if the courts were to express their unanimous disapproval of warrantless searches of cell phones incident to arrest, this would merely compel law enforcement to proceed precisely as TFO Gavel did
Nonetheless, the Court acknowledges the Government’s point that the case law upholding the legality of warrant-less searches of cell phones incident to arrest lends indirect support, at least, to the conclusion that the search at issue here did not transgress Defendant’s Fourth Amendment rights. In particular, these rulings recognize, if only implicitly, that a prompt, warrantless seizure and search of a suspect’s cell phone is justified in order to preserve possible evidence of the offense of arrest that might otherwise be lost or destroyed. Absent this concern, the rationale for a warrantless search incident to arrest would have been lacking in those cases. See Arizona v. Gant,
Accordingly, to the extent that Defendant argues that the evidence uncovered in TFO Gavel’s search of his cell phone should be suppressed because the possibly incriminating nature of this evidence would not have been immediately apparent to the Detroit police officers who arrested him and initially came upon and seized this device, this contention is inconsistent with the reasoning behind the courts’ widespread (albeit not uniform) recognition that a cell phone may lawfully be seized and its contents searched without a warrant incident to an arrest. While the precise rationale for this conclusion varies somewhat from case to case, the courts have often cited the need to preserve evidence that could otherwise be readily deleted from the device. See, e.g., Flores-Lopez,
Apparently acknowledging the obstacle posed by this case law that largely approves warrantless cell phone searches incident to arrest, Defendant focuses his challenge primarily on the seizure of his cell phone, rather than the subsequent search of this device pursuant to a warrant. Specifically, he challenges the Government’s authority to take his cell phone from him at the scene of his arrest and hold it for several days before seeking a search warrant. In Defendant’s view, a cell phone is analogous to other items of personal property that, on their face, are unlikely to serve as evidence of the offense of arrest, and thus cannot be seized and retained by law enforcement officers upon their discovery during a search incident to an arrest.
Yet, Defendant has failed to identify any case law support for this proposition, and the decisions uncovered in the Court’s own research point to a contrary conclusion. In United States v. Burgess,
“might lie in the sheer range and volume of personal information the computer may contain.” Burgess,
In another line of cases, the courts have approved the warrantless seizure of such items as suitcases and laptop computers based on probable cause, so long as “the exigencies of the circumstances demand” such a seizure pending the issuance of a warrant. United States v. Place,
Similarly, in United States v. Bradley,
Even if Respress and Bradley perhaps are not directly controlling here, they lend additional support to the conclusion that Defendant’s cell phone was lawfully seized incident to his arrest and pending the issuance of a search warrant. Assuming there was probable cause for this seizure, Res-press approves “[t]he practice of seizing an item based on probable cause in order to secure a search warrant for it.” Respress,
In any event, even if Defendant were correct that the initial seizure of his cell phone at the time of his arrest was unlawful, he has failed to suggest a reason why the exclusion of evidence found in a subsequent search of this device pursuant to a warrant would be a proper remedy for any such transgression. As the Supreme Court has emphasized, “[w]hether the exclusionary sanction is appropriately im
The foregoing survey of the case law defeats any claim that it would or should have been evident to the Detroit police officers who arrested Defendant that they could not lawfully seize his cell phone incident to this arrest. As discussed above, a sizable majority of courts have upheld at least limited warrantless searches of cell phones incident to an arrest. See United States v. Curtis,
Moreover, to the extent that the Government failed to act promptly in applying for a search warrant, but instead continued to hold Defendant’s cell phone for a few additional days after he was released from custody, this modest “intrusion into [Defendant’s] possessory interest” in his phone did not implicate a more substantial privacy or liberty interest, Bradley,
B. Law Enforcement Could Reasonably Rely on the Warrant Issued by the Magistrate Judge Authorizing the Search of Defendant’s Cell Phone.
The foregoing analysis rests to an extent on the premise that the search of Defendant’s cell phone was conducted pursuant to a warrant issued on a proper showing of probable cause. As noted, however, Defendant challenges this premise, arguing that the affidavit submitted by TFO Gavel in support of the search warrant was wholly generic, resting in the officer’s training and experience rather than any facts specific to this case. In response, the Government contends that TFO Gavel’s affidavit provided sufficient particularized facts to support Magistrate Judge Grand’s determination of probable cause, and that, in any event, there was an objectively reasonable basis for law enforcement authorities to rely on the warrant issued by the Magistrate Judge as lawful authority to search Defendant’s cell phone. As discussed below, the Court finds that the Government has the better of the argument on this issue.
In determining whether an affidavit establishes probable cause for the issuance of a search warrant, “[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,
In Defendant’s view, the affidavit prepared by TFO Gavel failed to identify any specific facts or circumstances of this case that would support a finding of probable cause to search his cell phone. The affidavit does not, for example, cite any facts indicating that Defendant or any other individual involved in the robbery actually used a cell phone in connection with this offense. Against this backdrop, Defendant submits that the search warrant issued by the Magistrate Judge was a “ ‘general warrant’ allowing law enforcement to rummage through the Defendant’s personal property to see if any evidence of a crime under investigation could be found.” (Defendant’s Motion, Br. in Support at 9.) Moreover, to the extent that TFO Gavel relied on his training and experience to opine that there was a fair probability that Defendant’s cell phone would contain evidence of the robbery offense under investigation, Defendant argues that such “training and experience” alone cannot “substitute for the lack of [an] evidentiary nexus” between his cell phone and criminal activity. United States v. Schultz,
The Court cannot agree that TFO Gavel’s affidavit was wholly devoid of reference to facts and circumstances uncovered in his investigation, and instead rested solely on his training and experience. Importantly, TFO Gavel stated near the outset of his affidavit that the February 12, 2013 robbery of the BP gas station involved “two participants wearing masks,” with one of these participants subsequently identified as Defendant. (Defendant’s Motion, Ex. A, Search Warrant Aff. at ¶¶ 4-5.) TFO Gavel then described the additional evidence uncovered in his investigation that tended to confirm that Defendant was, in fact, one of the two participants in the robbery. (See id. at ¶ 8.) In light of these facts, TFO Gavel cited his training and experience as grounds for believing that the cell phone found in Defendant’s possession would contain evidence of pre-planning of the robbery and of “coordinat[ion] and communication]” among the participants “prior to the robbery to arrange meeting times, the availability of firearms and other details related to the robbery.” (Id at ¶ 11.) Plainly, then, TFO Gavel did not rely exclusively on his training and experience as grounds for searching Defendant’s cell phone, but rather cited the evidence of Defendant’s joint participation in the gas station robbery along with another individual as supporting his belief that a search of this device would reveal evidence shedding light on the identities of these multiple
In a number of other cases, the courts have pointed to analogous facts as supporting the inference that a search of a cell phone was likely to uncover evidence of criminal activity involving multiple participants. In United States v. Barret,
Similarly, in United States v. Wiseman,
Finally, even if the Court were to conclude that TFO Gavel’s affidavit failed to establish probable cause to search Defendant’s cell phone, suppression of the evidence found in this search would be unwarranted unless TFO Gavel lacked “reasonable grounds for believing” that the search warrant signed by Magistrate Judge Grand “was properly issued.” Leon,
In light of the case law surveyed above, the Court readily concludes that TFO Gavel’s affidavit established a “minimally sufficient nexus” between the criminal activity under investigation and Defendant’s cell phone, such that a reasonable officer in TFO Gavel’s position would have had a good-faith belief in the validity of the warrant issued by the Magistrate Judge. See Carpenter,
IY. CONCLUSION
For the reasons stated at the December 5, 2013 hearing, as supplemented by the rulings set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant Maurice Ghol-ston’s October 28, 2013 motion to suppress evidence (docket # 33) is DENIED.
Notes
. Previously, on February 27, 2013, TFO Gavel applied, for a warrant to search Defendant's home for footwear that had been observed in the gas station security video. The requested warrant was issued, and the ensuing search uncovered a pair of boots that appeared to be the same as those worn by one of the robbers in the video.
. TFO Gavel observed elsewhere in his warrant application that the "user attribution” evidence typically found on a cell phone, which "indicate[s] who has used or controlled the device,” is analogous to the “indicia of occupancy” that officers look for "while executing a search warrant at a residence.” {Id. at ¶ 13(b).)
. The Supreme Court has just granted certio-rari in Wurie, see United States v. Wurie, - U.S. -,
. The Court recognizes that Defendant questions whether the warrant authorizing the search of his cell phone was issued upon a proper showing of probable cause. This separate challenge to the lawfulness of the search of Defendant’s cell phone is addressed below.
.Along the same lines, the case law governing inventory searches permits the police to "remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed.” Illinois v. Lafayette,
. The only additional information cited by TFO Gavel was that a search of Defendant’s home uncovered a pair of boots that appeared to be the same as those worn by the robber in the surveillance video obtained from the BP gas station. (See Defendant’s Motion, Ex. 1, Search Warrant Aff. at ¶ 8.) This merely confirmed the eyewitness account of the BP clerk who recognized Defendant as one of the robbers from past encounters, and who picked Defendant's photo out of a line-up as the individual who had robbed the gas station. (See id. at ¶¶ 4-5.)
. Again, Defendant separately questions whether the warrant to search his cell phone rested on a proper showing of probable cause, and the Court addresses this challenge below.