RENDERED: OCTOBER 9, 2020; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NOS. 2018-CA-1603-MR, 2018-CA-1641-MR, AND 2018-CA-1773-MR
EHMAUD LYJUAN TUCKER1 APPELLANT
APPEALS FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NOS. 17-CR-00974, 17-CR-01226, AND 17-CR-01252
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
ACREE, JUDGE: Ehmaud Lyjuan Tucker appeals the Fayette Circuit Court’s
May 18, 2018 order denying his motion to suppress evidence obtained from his
1 Appellant’s first name is spelled “Ehmuad” in the notice of appeal and in other places throughout the record. cell phone. Tucker believes the circuit court erred in denying his motion because
the search warrant was overbroad. Finding no error, we affirm.
BACKGROUND
On July 7, 2017, police were investigating several recent burglaries in
the Lexington area. An e-mail was distributed throughout the police department
that included a description of the suspect. The e-mail described a black male in his
late teens or early twenties wearing a pink North Face backpack. That day, police
saw Tucker – who fit the description – and attempted to detain him. Tucker fled
and, while running, tossed away a firearm. Police eventually caught Tucker and
found the firearm, marijuana, and several of the stolen items.
After detaining Tucker, the police sought a warrant to search his cell
phone. Detective Gary Cottrell prepared and signed an affidavit to serve as the
basis for a judge’s conclusion probable cause for a search warrant existed. The
affidavit described Tucker’s cell phone by location and by IMEI number.2 It
sought “[a] complete forensic examination of the above listed Cellular telephone
[including] examination by use of specialized software and techniques accepted by
the computer forensic scientific community for a proper seizure and retention of
digital evidence.” (Record (R.) at 91.) The affidavit further stated that “there is
2 The IMEI, or International Mobile Equipment Identity, number is a unique 15-digit code identifying the device.
-2- probable and reasonable cause to believe and affiant does believe that said property
constitutes . . . evidence which tends to show that a crime has been committed or
that a particular person has committed a crime.” (Id.) After describing the
circumstance of Tucker’s arrest, including the basis of the affiant’s/officer’s belief
Tucker was involved in a series of burglaries between June 27 and July 7, 2017,
the affidavit states:
It is the affiant’s experience that cellular devices and cellular phone records can contain information showing whom the subjects have been in contact with and the locations of the contact, during specific time periods. It is also affiant’s experience that data that has been deleted from a cellular device can be recovered during a forensic examination of the item.
(R. at 92.) The warrant was issued on July 10, 2017.
The warrant identifies Tucker’s cell phone and then authorizes and
describes the scope of the search as follows:
A complete forensic examination of the above listed Cellular telephone to include: phonebook, call history (including received, dialed and missed calls), incoming, outgoing and drafts of text messages, IMEI/ESN/IMSI number, pictures and images, video, audio recordings, ringtones, phone details, memory card and SIM card, for a full forensic examination by use of specialized software and techniques accepted by the computer forensic scientific community for the proper seizure and retention of digital evidence.
(R. at 94.)
-3- The search revealed a video and photograph of Tucker holding an
AR-15 rifle that was modified with non-factory parts. Those distinctive features
were identified by a homeowner whose rifle was stolen during a burglary reported
on May 25, 2017. The search also revealed a text message, delivered on May 25,
2017, referring to an AR-15 rifle. Based on this, police applied for, and received,
another search warrant. This time the warrant was for Tucker’s DNA. The goal
was to match Tucker’s DNA with blood evidence left during the May 25 burglary.
The Kentucky State Police crime lab matched the evidence to Tucker’s DNA,
resulting in Tucker being charged with first-degree burglary in a new case.3
Tucker’s counsel filed a motion to suppress evidence in the original
case and the new burglary case. The motion was denied. Eventually, Tucker
entered a conditional guilty plea for first-degree fleeing or evading police,
tampering with physical evidence, receiving stolen property under $10,000,
carrying a concealed deadly weapon, attempted tampering with a prisoner
monitoring device, and first-degree burglary. The culmination of these sentences
ran consecutively for a total of eleven (11) years. Tucker filed a notice of appeal in
all three cases, which were consolidated for this review.
3 During the pendency of these actions, Tucker was released on electronic monitoring but tampered with the device and fled. This resulted in additional criminal charges.
-4- STANDARD OF REVIEW
An appellate court reviewing a lower court’s denial of a motion to
suppress evidence utilizes a clear error standard of review for factual findings and
a de novo standard of review for conclusions of law. Welch v. Commonwealth, 149
S.W.3d 407, 409 (Ky. 2004).
ANALYSIS
The Supreme Court of the United States has held there is a reasonable
expectation of privacy in the contents of one’s cell phone. Riley v. California, 573
U.S. 373, 385-86, 134 S. Ct. 2473, 2484-85, 189 L. Ed. 2d 430 (2014).
Accordingly, a search warrant is generally required before an officer can search the
data contained within a person’s cell phone, and the warrant must meet the
particularity requirement of the Fourth Amendment. The Fourth Amendment’s
requirement that a warrant “particularly describe[] the place to be searched, and the
persons or things to be seized . . . makes general searches . . . impossible and
prevents the seizure of one thing under a warrant describing another. As to what is
to be taken, nothing is left to the discretion of the officer executing the warrant.”
Berger v. State of N.Y., 388 U.S. 41, 58, 87 S. Ct. 1873, 1883, 18 L. Ed. 2d 1040
(1967) (citations omitted).
Tucker claims the warrant here was overbroad, lacking this necessary
particularity, and thereby allowing the unconstitutional general search of his cell
-5- phone contents. He says the reason the warrant was overbroad is that “[i]t
contained no reference to any specific crime for which the police were to search for
evidence and contains no date restriction.” (Appellant’s brief, pp. 9-10.) This is
not entirely correct.
We find guidance from this Court’s factually similar case of
Applegate v. Commonwealth, authored by Judge, now Justice, Nickell. 577
S.W.3d 83 (Ky. App. 2018), disc. rev. denied (Ky. Jun. 5, 2019). In that case,
police officers conducted a lawful search of Applegate’s car, discovering a
handgun, drugs, scales, packaging materials, a tablet computer, digital camera, and
two cell phones. Id. at 86. Believing the electronic devices might contain
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RENDERED: OCTOBER 9, 2020; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NOS. 2018-CA-1603-MR, 2018-CA-1641-MR, AND 2018-CA-1773-MR
EHMAUD LYJUAN TUCKER1 APPELLANT
APPEALS FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NOS. 17-CR-00974, 17-CR-01226, AND 17-CR-01252
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
ACREE, JUDGE: Ehmaud Lyjuan Tucker appeals the Fayette Circuit Court’s
May 18, 2018 order denying his motion to suppress evidence obtained from his
1 Appellant’s first name is spelled “Ehmuad” in the notice of appeal and in other places throughout the record. cell phone. Tucker believes the circuit court erred in denying his motion because
the search warrant was overbroad. Finding no error, we affirm.
BACKGROUND
On July 7, 2017, police were investigating several recent burglaries in
the Lexington area. An e-mail was distributed throughout the police department
that included a description of the suspect. The e-mail described a black male in his
late teens or early twenties wearing a pink North Face backpack. That day, police
saw Tucker – who fit the description – and attempted to detain him. Tucker fled
and, while running, tossed away a firearm. Police eventually caught Tucker and
found the firearm, marijuana, and several of the stolen items.
After detaining Tucker, the police sought a warrant to search his cell
phone. Detective Gary Cottrell prepared and signed an affidavit to serve as the
basis for a judge’s conclusion probable cause for a search warrant existed. The
affidavit described Tucker’s cell phone by location and by IMEI number.2 It
sought “[a] complete forensic examination of the above listed Cellular telephone
[including] examination by use of specialized software and techniques accepted by
the computer forensic scientific community for a proper seizure and retention of
digital evidence.” (Record (R.) at 91.) The affidavit further stated that “there is
2 The IMEI, or International Mobile Equipment Identity, number is a unique 15-digit code identifying the device.
-2- probable and reasonable cause to believe and affiant does believe that said property
constitutes . . . evidence which tends to show that a crime has been committed or
that a particular person has committed a crime.” (Id.) After describing the
circumstance of Tucker’s arrest, including the basis of the affiant’s/officer’s belief
Tucker was involved in a series of burglaries between June 27 and July 7, 2017,
the affidavit states:
It is the affiant’s experience that cellular devices and cellular phone records can contain information showing whom the subjects have been in contact with and the locations of the contact, during specific time periods. It is also affiant’s experience that data that has been deleted from a cellular device can be recovered during a forensic examination of the item.
(R. at 92.) The warrant was issued on July 10, 2017.
The warrant identifies Tucker’s cell phone and then authorizes and
describes the scope of the search as follows:
A complete forensic examination of the above listed Cellular telephone to include: phonebook, call history (including received, dialed and missed calls), incoming, outgoing and drafts of text messages, IMEI/ESN/IMSI number, pictures and images, video, audio recordings, ringtones, phone details, memory card and SIM card, for a full forensic examination by use of specialized software and techniques accepted by the computer forensic scientific community for the proper seizure and retention of digital evidence.
(R. at 94.)
-3- The search revealed a video and photograph of Tucker holding an
AR-15 rifle that was modified with non-factory parts. Those distinctive features
were identified by a homeowner whose rifle was stolen during a burglary reported
on May 25, 2017. The search also revealed a text message, delivered on May 25,
2017, referring to an AR-15 rifle. Based on this, police applied for, and received,
another search warrant. This time the warrant was for Tucker’s DNA. The goal
was to match Tucker’s DNA with blood evidence left during the May 25 burglary.
The Kentucky State Police crime lab matched the evidence to Tucker’s DNA,
resulting in Tucker being charged with first-degree burglary in a new case.3
Tucker’s counsel filed a motion to suppress evidence in the original
case and the new burglary case. The motion was denied. Eventually, Tucker
entered a conditional guilty plea for first-degree fleeing or evading police,
tampering with physical evidence, receiving stolen property under $10,000,
carrying a concealed deadly weapon, attempted tampering with a prisoner
monitoring device, and first-degree burglary. The culmination of these sentences
ran consecutively for a total of eleven (11) years. Tucker filed a notice of appeal in
all three cases, which were consolidated for this review.
3 During the pendency of these actions, Tucker was released on electronic monitoring but tampered with the device and fled. This resulted in additional criminal charges.
-4- STANDARD OF REVIEW
An appellate court reviewing a lower court’s denial of a motion to
suppress evidence utilizes a clear error standard of review for factual findings and
a de novo standard of review for conclusions of law. Welch v. Commonwealth, 149
S.W.3d 407, 409 (Ky. 2004).
ANALYSIS
The Supreme Court of the United States has held there is a reasonable
expectation of privacy in the contents of one’s cell phone. Riley v. California, 573
U.S. 373, 385-86, 134 S. Ct. 2473, 2484-85, 189 L. Ed. 2d 430 (2014).
Accordingly, a search warrant is generally required before an officer can search the
data contained within a person’s cell phone, and the warrant must meet the
particularity requirement of the Fourth Amendment. The Fourth Amendment’s
requirement that a warrant “particularly describe[] the place to be searched, and the
persons or things to be seized . . . makes general searches . . . impossible and
prevents the seizure of one thing under a warrant describing another. As to what is
to be taken, nothing is left to the discretion of the officer executing the warrant.”
Berger v. State of N.Y., 388 U.S. 41, 58, 87 S. Ct. 1873, 1883, 18 L. Ed. 2d 1040
(1967) (citations omitted).
Tucker claims the warrant here was overbroad, lacking this necessary
particularity, and thereby allowing the unconstitutional general search of his cell
-5- phone contents. He says the reason the warrant was overbroad is that “[i]t
contained no reference to any specific crime for which the police were to search for
evidence and contains no date restriction.” (Appellant’s brief, pp. 9-10.) This is
not entirely correct.
We find guidance from this Court’s factually similar case of
Applegate v. Commonwealth, authored by Judge, now Justice, Nickell. 577
S.W.3d 83 (Ky. App. 2018), disc. rev. denied (Ky. Jun. 5, 2019). In that case,
police officers conducted a lawful search of Applegate’s car, discovering a
handgun, drugs, scales, packaging materials, a tablet computer, digital camera, and
two cell phones. Id. at 86. Believing the electronic devices might contain
evidence pertinent to his drug investigation, the investigating officer prepared an
affidavit for a search warrant of the cell phones and tablet. Id. Specifically, the
affidavit stated the officer was looking for “photos, videos or communications
related to guns, drug activity, co-conspirators, drug network activity and other
associated information.” Id. A warrant was issued, and a complete forensic
examination of the electronic devices was conducted.
The examination revealed photographs of a methamphetamine
cooking operation. In addition, the investigating officer opened various files
containing photographs and videos depicting child pornography. Id. at 87. Based
on this, a second warrant was sought, and issued, for the digital camera. No
-6- evidence of illegal activity was discovered. A third search warrant then issued
allowing the examination of all the electronic devices. This search revealed text
messages relating to drug trafficking and photographs and videos depicting child
pornography. Id. Applegate moved to suppress all evidence seized. The motion
was denied.
On appeal, Applegate argued, in part, the officers engaged in an
improper “general” search of his electronic devices because they “looked at all the
files recovered from the devices.” Id. at 90. Justice Nickell first reiterated the
prohibition against “general” searches and stated:
“If the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional” and the evidence excluded. Horton v. California, 496 U.S. 128, 140, 110 S. Ct. 2301, 2310, 110 L. Ed. 2d 112 (1990).
The scope of a lawful search is “defined by the object of the search and the places in which there is probable cause to believe that it may be found.” United States v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572 (1982). The Ross Court held that a lawful search is not “limited by the possibility that separate acts of entry or opening may be required to complete the search.” Id. at 820-21, 102 S. Ct. at 2170-71. . . .
....
An otherwise valid search is transformed into an impermissible general search only where the searching officers demonstrate a “flagrant disregard for the
-7- limitations of a search warrant[.]” United States v. Lambert, 771 F.2d 83, 93 (6th Cir. 1985).
Id. at 90-91 (quoting Lundy v. Commonwealth, 511 S.W.3d 398, 402-03 (Ky. App.
2017)).
Although the Court in Applegate noted that the search warrant was not
“artfully drafted . . . [t]he devices were particularly described, the events preceding
their seizure were set out in detail, and the evidence sought was specified.” Id. at
91. In addition, it limited the scope of the search to evidence of Applegate’s
involvement in drug trafficking. Most importantly, the Court held the officer’s
actions in opening various files did not render the search “general” because “they
were following the authorization contained in the search warrant.” Id. The Court
specifically relied on the reasonableness of the content being searched, noting:
[I]t is clear officers were searching only for evidence tying Applegate to drug trafficking. In so doing, they uncovered clear, unequivocal and immediately apparent evidence of Applegate’s possession of child pornography. This evidence was found in the same types of files which could reasonably have contained evidence related to drug trafficking. The officers properly limited their search in conformity with the warrant . . . .
Id.
The search warrant at issue in the instant case is arguably overbroad.
Although it particularly describes the cell phone to be searched, it essentially
allowed officers to search all the data on Tucker’s cell phone. However, when
-8- qualified by the limitations of the officer’s affidavit, the necessary particularization
restricts the search to evidence contained in the cell phone’s “phonebook, call
history (including received, dialed and missed calls), incoming, outgoing and drafts
of text messages, IMEI/ESN/IMSI number, pictures and images, video, audio
recordings, ringtones, phone details, memory card and SIM card,” (R. at 94),
“which tends to show that a crime has been committed or that a particular person
has committed a crime.” (R. at 91.) See Rawls v. Commonwealth, 434 S.W.3d 48,
60 (Ky. 2014) (officer affidavit may be incorporated into a search warrant to meet
specificity requirements). The affidavit further limits the scope of the warrant to a
search for evidence relating to the string of thefts committed between June 27 and
July 7, 2017.
Accordingly, Tucker’s claim that the search warrant contained no
reference to a specific crime is a false one. Additionally, the fact that the
investigating officers searched data not within the specified time range in which
the warrant was based does not in and of itself render it a “general” search.
Applegate stands for the proposition that, so long as the officers are searching files
“which could reasonably have contained evidence related to [the crime on which
the search warrant was based],” they are not exceeding the bounds of the warrant.
Applegate, 577 S.W.3d at 91.4
4 This rationale has been met with approval:
-9- We conclude it was reasonable for the officers to search files that pre-
dated the crimes which gave rise to the search warrant. The fact that the police
suspected the crimes occurred between June 27 and July 7, 2017, does not mean
discovered evidence showing “a crime has been committed or that a particular
person [could have] committed a crime” in data that pre-dated the crime spree must
be suppressed. It is reasonable, for example, that officers would discover evidence
of preparation or identification of Tucker’s associates in data pre-dating the actual
crimes. And, Tucker had only owned the phone for approximately one month
before the crime spree, which necessarily limited the search to a reasonable
timeframe.
In conclusion, the search warrant was not overbroad and, therefore,
did not lead to a “general” search of Tucker’s cell phone.
[A] warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for [marijuana] would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.
United States v. Ross, 456 U.S. 798, 821, 102 S. Ct. 2157, 2171, 72 L. Ed. 2d 572 (1982) (footnote omitted). “[S]o long as the computer search is limited to a search for evidence explicitly authorized in the warrant, it is reasonable for the executing officers to open the various types of files located in the computer’s hard drive in order to determine whether they contain such evidence.” Applegate, 577 S.W.3d at 91 (quoting United States v. Richards, 659 F.3d 527, 540 (6th Cir. 2011)).
-10- CONCLUSION
For the foregoing reasons, we affirm the Fayette Circuit Court’s May
18, 2018 order denying Tucker’s motion to suppress.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Aaron Reed Baker Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Christopher Henry Assistant Attorney General Frankfort, Kentucky
-11-