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Court Skips Suppression Review Because It Wouldn't Matter Anyway

By Robyn Hagan Cain on November 01, 2012 | Last updated on March 21, 2019

If government agents seize a cell phone incident to an arrest, can they search the contents of that phone two weeks later without a warrant?

The First Circuit Court of Appeals declined to answer that question this week, realizing that it would be a waste of time in Justin Green's drug ring appeal.

The Drug Enforcement Administration (DEA) busted Green in 2009 as part of an investigation into an oxycodone trafficking operation in and around Fall River, Mass. Agents seized two cell phones from Green when they arrested him.

Two weeks after Green's arrest, DEA Special Agent Carl Rideout removed the back outside casing and battery from each of Green's cell phones and retrieved the International Mobile Subscriber Identity (IMSI) number from each. Agent Rideout did not have a warrant.

According to the government, the DEA agents used the IMSI numbers to obtain toll and subscriber information (including the telephone numbers) for the cellular telephones. Green's phone number, as well as other information in his phone, connected him to the trafficking operation.

After he was charged with conspiring to possess with intent to distribute oxycodone, Green filed a motion to suppress the cell phones and all evidence obtained from them. The government countered that the "inevitable discovery" doctrine applied because the DEA would have obtained Green's phone number through the consensual search of a co-conspirator's phone and then, using that number, would have subpoenaed Green's toll records.

The district court denied the motion to suppress.

A jury convicted Justin Green of participating in an oxycodone distribution conspiracy, and he received a sentence of 210 months.

On appeal, he raised several challenges to his conviction and sentence; most importantly, that the district court erred in refusing to suppress evidence that DEA agents obtained from his phones.

The First Circuit Court of Appeals, however, found that any error was harmless because there was overwhelming evidence against Green, even without the information from his phone. Thus, the First Circuit left the Fourth Amendment debate for another day.

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