UNITED STATES v. BARNES (2025)

ORDER GRANTING DEFENDANT'S FIRST MOTION TO SUPPRESS EVIDENCE [38]

This matter comes before the Court on Defendant Curtis Barnes’ First Motion to Suppress Evidence. The Defendant seeks to suppress a wide range of evidence that includes statements and evidence obtained from a computer, flash drive, and cell phone seized during what he contends was an unlawful arrest. After reviewing the relevant briefing and having conducted a hearing on May 15, 2025, this Court grants the Defendant's Motion.

Background and Findings of Fact

On October 17, 2023, Curtis Barnes was a passenger in Brandon Espe's car heading from Oregon to Minnesota. [ECF No. 38, at 2]. As the two drove through Wyoming they were pulled over by Trooper Dellos of the Wyoming Highway Patrol for speeding. Id. The trooper smelled marijuana and Mr. Espe admitted that there was a joint in the car. Id.; [ECF No. 47, at 2]. Trooper Dellos then walked his narcotics K9 around the exterior of the car, which further signaled the presence of drugs. Id. at 3. Trooper Dellos then searched the car and found the joint along with THC wax, raw marijuana, methamphetamine, hydrochloride pills, Xanax, various pieces of drug paraphernalia, and what he believed to be trace amounts of cocaine. Id.; [ECF No. 47, at 3]. Trooper Dellos testified that he found the majority of the THC wax behind the driver's seat in a locked container and another jar of wax between the driver and passenger seat. The majority of the raw marijuana was in the trunk of the car in a locked and sealed bag, while other containers of marijuana were in luggage in the backseat. Mr. Espe denied ownership of much of the drugs and claimed that at least some of it belonged to his girlfriend. [ECF No. 47, at 3]. He eventually admitted to being the owner of the methamphetamines and implied to Trooper Dellos that he was transporting the marijuana to Minnesota. Mr. Espe never implicated the Defendant in any way. Id.

Meanwhile, the Defendant informed another Trooper that he was catching a ride with Mr. Espe to Omaha, Nebraska. Id. The Defendant was then allegedly given a chance to call a family member and, when that family member did not respond, he was placed under arrest. Id. at 4. Trooper Dellos also seized the Defendant's cell phone. Id. The car was then towed to the Wyoming Combined Laboratory where Division of Criminal Investigation (DCI) agents searched it and discovered bleached bills, a photo printer box, a USB thumb drive, and a laptop. Id. The agents then requested a warrant to search the cell phones, thumb drive, and laptop on suspicion of those items’ use in drug trafficking, which was granted. Id. at 4–5.

The state search of the devices was carried about by two different agents, with DCI Special Agent (then Forensic Investigator) Brown searching one of the cell phones and the laptop, and Special Agent Hock searching the USB thumb drive the other cell phones. SA Brown read the search warrant and began his search of the laptop on October 26, 2023. SA Brown began by conducting an image search and used software that allowed him to view thumbnails of the files on the computer.¹ SA Brown noticed files that had thumbnails that appeared to be of United States currency. SA Brown testified that at that point he paused his search of the devices and asked DCI SA Harnisch for guidance. SA Brown testified that SA Harnisch at some point instructed him to continue the search.²

On the morning of October 30, 2023, SA Brown continued to search the laptop, this time in preparation for a second search warrant of the car for counterfeiting evidence. SA Brown testified that he spent a great deal of time establishing a timeline for counterfeiting activity, and other various activities calibrated toward building evidence for an eventual investigation into counterfeiting. SA Brown concluded his search around October 31, 2023. The government does not dispute that his search activities in that time frame were devoted to finding evidence of counterfeiting. On November 1, 2023, SA Brown received a call from Secret Service SA Tellmann, who instructed him to stop searching the laptop per instruction from the United States Attorney's office.

SA Hock testified that he began his own search of the thumb drive on October 26, 2023. Similar to SA Brown's approach, SA Hock began by viewing Photoshop files on the flash drive, some of which were immediately viewable and some of which were not, and concluded that they contained images of United States currency. SA Hock informed SA Harnisch of what he found, and SA Harnisch advised SA Hock to pause his search. SA Hock testified that he resumed his search a day or two later and was able to access the remaining files on the thumb drive, which also contained images of currency. SA Hock further testified that he believed either SA Harnisch or a Secret Service Agent had told him to continue but that he did not remember exactly who. On October 30, 2023, SA Hock met with Secret Service Agent Tellmann and gave him access to the images of currency from the thumb drive.

SA Harnisch testified that he had been suspicious of counterfeiting activity ever since officers discovered bleached bills and the printer in the car. SA Harnisch testified that he had mentioned to Mr. Espe, or at least implied, during his interview that it was likely the Secret Service might be contacted. SA Harnisch testified that he remembered having conversations with Special Agents Brown and Hock at some point during their searches but that he did not recall telling them to continue their respective searches.

DCI then notified the Secret Service, who began their own investigation. Id. SA Tellmann of the Secret Service testified that SA Harnisch contacted him briefly on October 23 but that it wasn't until October 27 that they discussed the specific circumstances of the Defendant's case. SA Tellmann testified that while SA Harnisch told him about the presence of the bleached notes and the thumb drive, he did not tell him about the contents of the laptop. SA Tellmann testified that after that call, he suspected that there were counterfeiting activities.

On October 31, SA Tellmann spoke with SA Brown on the phone, and they discussed the Photoshop images discovered on the laptop. SA Tellmann suggested that SA Brown pause his search pending a discussion with the United States Attorney's Office. A few days later, SA Tellmann requested copies of the investigative reports and testified that he would have conducted research on the bills but that he did not have the necessary information at the time. SA Tellmann arranged to meet with SA Hock to view the bills and the contents of the thumb drive and testified that he had intended to pursue a search warrant for the electronic devices as early as October 30, 2023.

On November 1, 2023, after speaking with the United States’ Attorney's Office, SA Tellmann emailed state agents to cease all state and federal searches pending a federal warrant. In the email, SA Tellmann wrote that it would be preferable to “assume” that no federal searching had taken place, even though he had already visited DCI to view the bills and the images on the thumb drive. SA Tellmann eventually obtained a federal warrant to search the vehicle on November 9, 2023, that was executed on November 13, 2023, and a warrant for the electronic devices on January 9, 2024. Id. at 6. SA Tellmann testified that on February 25, 2024, he met with SA Brown, who gave him detailed information regarding his search of the laptop. SA Tellmann admitted that he performed no separate search of the devices. Mr. Barnes was eventually acquitted of state drug charges but indicted for the possession of items used in counterfeiting. Id.

Ruling of the Court

The Defendant argues that: (1) his arrest was unconstitutional because the arresting officer lacked probable cause; (2) that his cell phone was illegally seized because it was incident to an unlawful arrest; (3) that statements he made to police officers were made incident to an unlawful arrest; (4) that the search of the electronic devices was made pursuant to an invalid warrant; (5) that the search of the electronic devices exceeded the scope of the warrant; and (6) that the subsequent federal search was so interrelated to the unlawful state search that it did not cure the violations of the first search. The Court, addressing each argument in turn, finds that (1) the arrest was lawful; (2) the warrant was facially valid; (3) the search of the devices exceeded the scope of the warrant; and (4) the inevitable discovery exception does not apply to the evidence of counterfeiting found on the devices.

I. The arrest of the Defendant was constitutional.

The Defendant first argues that his arrest was unconstitutional because it was not supported by probable cause. He argues that there was no indication that the car or the luggage in which the drugs were found belonged to him and, absent evidence that he was involved in any plans to transport drugs, there was no reason to arrest him.

The government responds that the arresting officer did have probable cause because Mr. Espe initially denied ownership of the drug paraphernalia, and since the drugs were found all around the car, the officer was permitted to infer that all the car's occupants had knowledge of the criminal activity. The government further points to the fact that a truck that also had an Oregon license plate was driving just ahead of Mr. Espe's car, which they contend could imply that multiple people were involved in the drug transportation scheme.

Probable cause to arrest a passenger for drug possession may exist where drugs were found in a location accessible to all persons in the car—i.e., behind the back seat armrest — and none of the car's occupants provided any information as to the ownership of the drugs. Maryland v. Pringle, 540 U.S. 366, 371–72 (2003). However, “mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause.” United States v. Vazques-Pulido, 155 F.3d 1213, 1216 (10th Cir. 1998) (quoting Ybarra v. Illinois, 444 U.S. 85, 91 (1979)); see United States v. Di Re, 332 U.S. 581, 592 (1948). There is no probable cause where drugs are hidden in the car and there is no reason to think that the defendant passenger knows of their presence. United States v. Garcia Rodriguez, 93 F.4th 1162, 1167 (10th Cir. 2024) (finding no probable cause where drugs were found in a hidden compartment and there was no evidence that the owner of the drugs had told the defendant where they were).

The Defendant describes a situation similar to Ybarra, Di Re, or Garcia Rodriguez, each of which involved passengers who were merely present while another person engaged in criminal activity. For example, in Di Re, the driver was a confidential informant who gave the police the name of a second passenger who was involved in the criminal scheme. The United States Supreme Court held that the officer did not have probable cause to arrest the defendant because there was no evidence linking him to the transaction and the informant had already identified the other passenger as co-conspirator. Di Re, 332 U.S. at 592–94. On the other hand, the government analogizes this case to Pringle, in which there was sufficient probable cause to arrest the passenger where drugs were found in a location accessible to all those riding in the car and none of the passengers claimed responsibility for them.

Here, the K9 unit alerted officers to the presence of drugs in multiple locations within the car, not just those within Mr. Espe's control. The drugs and drug paraphernalia were entirely concealed in various pieces of luggage, the ownership of which was not established at the time of the arrest, and Mr. Espe appears to have claimed that the car and drugs belonged to his ex-girlfriend. However, on the whole, this case is more similar to Pringle where the drugs were accessible to the other passengers and there was no explanation as to their ownership. Unlike in Di Re, where officers had a credible informant tip that they ignored, the officers were entitled to doubt Mr. Espe's claim that the car and drugs belonged to someone else. With drugs found in multiple pieces of luggage throughout the car and trunk and no credible explanation as to their ownership, the officer had probable cause to believe that the Defendant was involved in the scheme to transport drugs. Having found that the arrest of the Defendant was lawful, the Court need not address the Defendant's argument that information from his cell phone and statements made while in custody were incident to an unlawful arrest.

II. The warrant was not overbroad on its face.

The Defendant argues that the warrant to search the thumb drive, laptop, and cell phone was facially overbroad because it failed to limit the search to a specifically defined crime. The warrant permitted the officers to search:

The cellular telephone or devices described above; electronically stored information and media including but not limited to: information stored in the cellular telephones or accessed through the cellular telephones; mobile number; subscriber informational contacts; calendars; the make and model of handset(s); additional identifying numbers to the handset(s) or cellular number; caller identification information; call detail records (CDR), including incoming and outgoing cellular calls; text detail records (TDR), including all incoming and outgoing text messages (SMS) content (conversation and text of the text; incoming and outgoing multimedia message (MMS) content, including photos and videos, wherever it may be found on the device including external media storage cards or server backup such as and including Micro SD cards, Subscriber Identity Module (SIM) cards or external server “Cloud” or back up services, pertaining to the phone number(s). The Terms “records”, “information”, “external media storage cards” and “server backup” include all the foregoing items of evidence in whatever form and by whatever means that may have been created or stored, including on any electronically stored data or media on SD cards, Micro SD Cards, Universal Subscriber Identity Module (USIM) Cards, Subscriber Identity Module (SIM) Cards Including Full Size, Micro and Nano SIM Cards associated to the cellular device and/or cellular device server backup included but not limited to Cloud back up services and proprietary cellular company back up services, or other devices capable of the storage of electronic media which have stored data or media information constituting means or fruits of the crimes of Trafficking, Manufacture, Delivery, and possession of Scheduled Controlled Substances.

[ECF No. 38-2, at 1]. The Defendant argues that the non-exhaustive phrase “including but not limited to” constitutes an impermissibly broad “catch-all” phrase. He then argues that the police exceeded the scope of the warrant because they did not limit their search to evidence of drug trafficking. The government responds that the warrant satisfied the particularity requirement of the Fourth Amendment because it described the property to be searched and specified that officers were to look for evidence of crimes related to use, trafficking, manufacture, delivery, and possession of a controlled substance.

“The Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a ‘general, exploratory rummaging in a person's belongings.’ ” Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). A warrant is sufficiently particular when “it enables the searcher to reasonably ascertain and identify the things authorized to be seized.” United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988). As applied to electronic files, a warrant must be “affirmatively limit[ed] ․ to evidence of specific federal crimes or specific types of material.” United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005) (holding that a warrant that neither limited the types of files to be searched nor specified particular crimes was overbroad). Warrants are understood via “a practical rather than technical reading” but this “does not require [a court] to indulge every possible interpretation.” United States v. Otero, 563 F.3d 1127, 1133 (10th Cir. 2009).

The Defendant first argues that the search warrant was overbroad because of the “catch-all” expression regarding the areas that the warrant can be searched. The Defendant points primarily to United States v. Dunn and Cassady v. Goering, both of which involved an impermissible catch-all phrase. 719 F. App'x 746, 748–50 (10th Cir. 2017); 567 F.3d 628, 635 (10th Cir. 2009). However, both of these cases involved warrants that were constrained neither to certain types of evidence nor evidence of specific crimes. See Dunn, 719 F. App'x at 749 (warrant authorized search for any means of crime or “other”); Cassady, 567 F.3d at 635 (warrant authorized search for “all other evidence of criminal activity”). The warrant in this case has a catch-all phrase as to the types of evidence to be searched but is affirmatively limited to evidence of drug trafficking, manufacture, delivery, and possession. The warrant therefore satisfies the requirement described in cases such as Riccardi that “warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.” 403 F.3d at 862; see United States v. Palms, 21 F.4th 689, 698 (10th Cir. 2021).

III. Officers exceeded the scope of the warrant in their search of the electronic devices.

However, the Defendant argues that even if the warrant was facially valid, the search conducted by state and federal agents was outside the scope of the warrant. The government argues that the agents were reasonable in their search, and that the Photoshop file they opened could well have contained evidence of drug trafficking.³

Officers may not exceed the scope of the warrant during the search and must “conduct the search in a way that avoids searching files of types not identified in the warrant.” Id.; see United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). “Respect for legitimate rights to privacy ․ requires an officer executing a search warrant to look first in the most obvious places and as it becomes necessary to progressively move from the obvious to the obscure.” United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009). Computers, by the “sheer range and volume of personal information” they contain, create the risk of an invasive search at a greater scale than searches of physical items do. Id. at 1087. Search warrants in the context of electronic devices present difficult Fourth Amendment issues, and courts should not “ignore the realities of massive modern computer storage.” Carey, 172 F.3d at 1275 (quoting Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 104 (1994)). “Where officers come across relevant documents so intermingled with irrelevant documents that they cannot feasibly be sorted at the site, the officers may seal or hold the documents pending approval by a magistrate of the conditions and limitations on a further search through the documents.” Id.

The Tenth Circuit enumerated factors to consider when deciding whether a search was directed at discovering unresponsive evidence in United States v. Loera, 923 F.3d 907, 919–20 (10th Cir. 2019). Courts are to examine: (1) the length of time the searching officer spent looking at the incriminating, nonresponsive evidence; (2) whether “the nonresponsive files were set apart from the responsive files;” (3) whether the evidence was discovered intentionally or unintentionally; and (4) whether the detour was broad or narrowly tailored. Id.

The Court cannot say that the agents’ search of the devices found in the car was reasonable. First, SA Brown's initial opening of the Photoshop files was unreasonable in light of the language of the warrant. While the warrant is broad as it pertains to the types of information and files to be accessed, it specifically discusses cell phones and communication-type information. Rather than beginning with the types of evidence most explicitly contemplated in the warrant (i.e., call logs or messages on the cellphone) SA Brown began by searching the thumb drive and examining Photoshop images. The method of beginning with image previews has also been held unreasonable when photographs are not the main object of the search. Compare Burgess, 576 F.3d at 1094 (holding that the preview method was reasonable where it was targeted to find relevant photos described in the warrant) with Carey, 172 F.3d at 1274 (holding it unreasonable for an agent to search JPG files with sexually explicit titles where the warrant permitted a search for “names, telephone numbers ․ and other documentary evidence pertaining to the sale and distribution of controlled substances”). SA Brown offered no rationale as to why he began searching in this fashion and testified that this was generally the approach he used when looking for evidence of child pornography. SA Hock appears to have followed a similar path.

The rest of the search clearly exceeded the bounds of the warrant. SA Brown testified that he initially paused his search of the thumb drive upon finding images of counterfeit bills, but then resumed his search at the instruction of SA Harnisch for the explicit purpose of gathering evidence for an eventual counterfeiting investigation. SA Brown then spent several days looking through the images with this goal in mind. Applying the Loera factors, the search for evidence that was nonresponsive to the warrant for drug activity lasted several days, which weighs heavily toward finding that the government exceeded the scope of the warrant. See Carey, 172 F.3d at 1273 (finding that a five-hour detour was excessive). As in Carey, the Photoshop images are at least somewhat set apart from the primary objects of the search and required some level of manipulation to view. See id. at 1274. Regarding the final two factors, similar to Carey, “the officer did not discover the files inadvertently (at least after his first look)” and indeed, per his own testimony, SA Brown deliberately sought evidence of counterfeiting. Loera, 923 F.3d at 918 (citing Carey, 172 F.3d at 1273). And it clearly would have been possible to conduct a more narrowly tailored search, as instead of beginning with Photoshop images on the thumb drive the agent could easily have begun his search on the cellphone searching for responsive evidence types enumerated in the warrant or obtained a new warrant before continuing to look for evidence of counterfeiting. The government argues that the images of money were potentially relevant because money is used to buy drugs but this is, first, a tenuous connection, as money is used to buy everything and, second, directly contradicted by SA Brown's own testimony, as he stated that he understood his goal to be finding evidence of counterfeiting. Therefore, the Court finds that the search of the devices exceeded the scope of the warrant.

IV. The government fails to show that the evidence would have been inevitably discovered by lawful means.

At the hearing, the government argued that even if state agents exceeded the scope of the warrant, the inevitable discovery exception applies to the evidence of counterfeiting found on the electronic devices. “The inevitable discovery doctrine provides an exception to the exclusionary rule and permits evidence to be admitted if an independent lawful police investigation would have inevitably discovered it.” United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir. 2005) (internal quotations omitted). Generally, the inevitable discovery doctrine applies to situations in which other exceptions to the warrant requirement ensure that evidence would have been discovered. United States v. Souza, 223 F.3d 1197, 1203 (10th Cir. 2000). However, even when there is no other applicable exception, while “the doctrine may apply where, in addition to the existence of probable cause, the police had taken steps in an attempt to obtain a search warrant.” Id.

The Tenth Circuit further distilled the requirements of the inevitable discovery doctrine in these limited circumstances. “What makes a discovery inevitable is not probable cause alone ․ but probable cause plus a chain of events that would have led to a warrant (or another justification) independent of the search.” Id. at 1204. In the context of a warrantless, exceptionless search, courts are to consider:

1) the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search, 2) the strength of the showing of probable cause at the time the search occurred, 3) whether a warrant ultimately was obtained, albeit after the illegal entry, and 4) evidence that law enforcement agents jumped the gun because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli.

Id. at 1204 (internal quotations omitted). The government bears the burden to show, by a preponderance of the evidence, that inevitable discovery applies. United States v. Eylicio-Montoya, 223 F.3d 1158, 1165 (10th Cir. 1995). Further, there is great reluctance to apply the doctrine of inevitable discovery where there is a warrantless search and no exception applies. Souza, 223 F.3d at 1206. Contingencies cannot be resolved on speculation; rather, they must be resolved via actual, historical facts. Nix v. Williams, 467 U.S. 431, 460 n.5 (1984).

On the one hand, courts have declined to apply the doctrine where, “after weighing the probability of obtaining a warrant and the probability that the evidence would have been discovered pursuant to the warrant, the contingencies involved were too uncertain to justify application of the doctrine.” Id. (citing United States v. Cabassa, 62 F.3d 470 (2d Cir. 1995)) (declining to apply to the doctrine of inevitable discovery where there was some probable cause and the process to obtain a search warrant had begun but it was unclear whether the evidence would still be accessible by the time a lawful search would have occurred). On the other hand, “courts have applied the inevitable discovery exception when, after an analysis of the relevant contingencies, they have been reasonably certain that the evidence would have been discovered pursuant to a valid search warrant. Souza, 223 F.3d at 1205 (citing United States v. Lamas, 930 F.2d 1099 (5th Cir. 1991)) (applying inevitable discovery where, after notifying his office that he would be seeking a warrant and leaving to obtain a warrant, the officer canceled the warrant process when he was incorrectly informed that the defendant had consented to the search).

Regarding the first and third Souza factors, the Defendant points out that the record is slim as far as historical, nonspeculative facts that the warrant process was in progress at the time of the illegal search. In particular, he stresses that the process to obtain a federal warrant for the devices did not begin until months after the state search, on roughly January 9, 2024, and that instead the state officers continued to exceed the scope of the state search warrant while seeking evidence in support of the federal warrant, per SA Brown's testimony.

SA Tellmann testified that he formed the intent to pursue a federal warrant as early as October 30, 2023, because of the bleached bills and the printer, as well as images taken from the illegal search of the thumb drive. Intent alone is not, generally, the sort of affirmative action that supports the application of inevitable discovery. See Souza, 223 F.3d at 1205–06 (applying the doctrine where the agent alerted his office he would be returning to seek a warrant and informed them to prepare an affidavit and placed the package to be searched in a location in preparation for a warrant to be obtained). The lack of significant steps toward obtaining a warrant certainly introduces contingencies as to whether a warrant ultimately would have been issued. Here, SA Tellmann's intent is coupled with his follow-up conversations, visits with state agents, and his review of the evidence in their control. However, SA Tellmann, in testifying to his intent, did not distinguish between the physical evidence and the evidence on the devices, making it difficult to know if he would have pursued a warrant absent the illegally obtained evidence. A federal warrant was eventually obtained to search the devices, which generally weighs against suppression, but the actual probable cause for that warrant was based on a mix of permissible and impermissible evidence. This fact introduces further uncertainty into whether a warrant would have ultimately been obtained if not for the illegal search. With such uncertainty surrounding the warrant factors, the Court finds that factors one and three ultimately weigh in favor of suppression.

Regarding the second Souza factor, the presence of the bleached bills and printer likely form strong probable cause to search the nearby devices for evidence of counterfeiting. None of the agents gave testimony that this kind of evidence was the typical basis for search warrants, but SA Tellmann did testify that the bleached-bill method was a common sign of counterfeiting. The second factor therefore weighs against suppression.

Regarding the fourth Souza factor, the record is subject to reasonable disagreement about whether law enforcement gathered evidence outside the scope of the initial state warrant in order to “force the issue” later with respect to the federal warrant. Both SA Brown and SA Hock testified that their superior, SA Harnisch, instructed them to continue their search for counterfeiting evidence in support of an eventual federal warrant. SA Harnisch denied making this statement. And while there is no testimony that SA Tellmann, the relevant federal agent, ever encouraged any kind of search for counterfeiting evidence, he was in contact with state agents throughout their search. While federal agents did somewhat promptly obtain a warrant to search the vehicle, they waited a few months to seek a warrant for the electronic devices themselves.

This Court finds that the inevitable discovery should not be applied because the government failed to demonstrate that the evidence of counterfeiting on the electronic devices would have been discovered without the unlawful search. While there was certainly probable cause, the first and fourth factors weigh in favor of suppression. And even though the government did eventually obtain a search warrant for the devices, that warrant was based, in part, on evidence already illegally obtained from the devices themselves, complicating the application of the third factor.

The factors yield a close call. There was certainly probable cause, but “inevitable discovery ․ does not apply in situations where the government's only argument is that it had probable cause for the search.” Souza, 223 F.3d at 1203. This was, however, the extent of the government's argument in their briefing and at the hearing. See [ECF No. 47, at 19]; [ECF No. 62, at 4-5]. In close cases such as this one, multiple courts have leaned on the importance of the first and third factors, as well as the Tenth Circuit's general reticence to apply the inevitable discovery to cases that do not involve other exceptions to the warrant requirement. See United States v. Castro, No. 23-20032-01-DDC, 2024 WL 3989191, at *9 (D. Kan. Aug. 29, 2024); United States v. Harris, 102 F. Supp. 3d 1187, 1201 (D. Kan. 2015); United States v. King, No. CR-13-0063-F, 2014 WL 12623360, at *37 (W.D. Okla. July 30, 2014).

The government simply contends that there was probable cause and leaves unaddressed the remaining contingencies surrounding the search warrant. Given that the government carries the burden to show inevitable discovery by a preponderance of the evidence, this Court cannot conclude that there are absolutely “no speculative elements” involved in determining whether a warrant would have been obtained. See Nix, 467 U.S. at 460 n.5. Of particular concern to the Court is the extent to which the state agents performing the search of the devices were encouraged to continue searching, beyond the scope of the warrant, to aid in the eventual obtaining of a federal warrant.

Further, while federal agents did indeed eventually obtain a warrant to search the devices, they performed little to no independent search of their own, and instead relied entirely on information gleaned during the state search by SA Brown. The principle underlying the enumerated factors is the fundamental requirement that the lawful search which would have inevitably led to the discovery of the evidence at issue be “independent of the illegal investigation.” United States v. Larsen, 127 F.3d 984, 987 (10th Cir. 1997); See Nix, 467 U.S. at 444 (“[T]he cases implementing the exclusionary rule begin with the premise that the challenged evidence is in some sense the product of illegal government activity ․ If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ․ then the deterrence rationale has so little basis that the evidence should be received.”) (internal quotations omitted); United States v. Owens, 782 F.3d 146, 152 (10th Cir. 1986) (“All the cases that have endorsed the inevitable discovery exception have relied upon independent, untainted investigations that would have inevitably uncovered the same evidence.”). While it is certainly conceivable that, based on the strong probable cause of the bills, the printer, and SA Tellmann's early involvement in the case, federal agents might have followed a lawful path in eventually executing a warrant for counterfeiting evidence on the devices, the prosecution ultimately failed to adduce any evidence that they actually attempted to conduct an investigation that was separate from that carried out by state agents. SA Tellmann was in contact with state investigators from the very beginning but waited months to obtain his own warrant for the devices. Upon obtaining the warrant, SA Tellmann simply acquired the information earlier developed by state agents. Because the federal investigation was entirely intertwined with the state investigation, there cannot be said to be an aspect of that investigation that is free of the taint of the original Fourth Amendment violation.

In sum, there are many points in the actual investigation that run counter to a hypothetical, lawful investigation and tend to contradict the argument that such an investigation did, or could have, occurred. The Court, above, articulates several points of uncertainty wherein a warrant may not have been sought, and those contingencies were left unresolved by the government. However, the more fundamental issue here is that the government failed to separate whatever lawful aspects of the investigation that may have existed from the unlawful aspects and to explain why those former aspects would have inevitably led to the discovery of the counterfeiting evidence on the electronic devices. The government's failure to elucidate a lawful pathway to the discovery of the counterfeiting evidence on the devices renders any attempt by the Court to reconstruct such an investigation an exercise in pure speculation. The Court also concludes that the federal search was insufficiently separate from the state search so as to cure the latter's deficiencies. Accordingly, the Court declines to apply the inevitable discovery doctrine.

Conclusion

Having found that state agents violated the Fourth Amendment in their search of the electronic devices and that no exception to the exclusionary rule applies, the Court finds that the evidence of counterfeiting discovered during the state search of the electronic devices should be suppressed.

NOW, THEREFORE, IT IS ORDERED THAT the Defendant's First Motion to Suppress Evidence [38] is GRANTED.

FOOTNOTES

1.   SA Brown testified that before this search his primary experience had been in child exploitation cases and that the methodology in those cases was to begin with searching for images. In response to the Court's questioning, he testified that he used essentially the same methodology in this case.

2.   SA Harnisch testified that that he did not recall telling SA Brown to continue the search and said that this was not something he would have normally done.

3.   The government also argues that the officers acted in good faith, but the good faith exception in Leon applies to reliance on magistrate judge error, not to police conduct in executing a valid warrant. United States v. Loera, 923 F.3d 907, 925 (10th Cir. 2019).

Kelly H. Rankin, United States District Judge