UNITED STATES v. DAVIS (2022)

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on the Report and Recommendation of Magistrate Judge Stephen R. Welby addressing Defendant's Motion to Suppress Physical Evidence and the Supplemental Motion to Suppress Physical Evidence Seized from Cellular Phone, [Doc. No's. 44 and 58, respectively]. In his July 21, 2022 Report and Recommendation, Judge Welby recommended that the Defendant's Motion be denied. Defendant has filed written objections to the recommendation. The Government has responded to the objections. For the reasons set forth below, the Court will adopt Judge Welby's recommendation and the Motion to Suppress Physical Evidence will be denied.

Legal Standard

When a party objects to the magistrate judge's report and recommendation, the Court must conduct a de novo review of the portions of the report, findings, or recommendations to which the party objected. See United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (citing 28 U.S.C. § 636(b)(1)). Pursuant to 28 U.S.C. § 636, the Court has conducted such a de novo review of those portions of the Report and Recommendation to which Defendant objects. The Court has read the transcript of the hearing, has fully considered the briefs filed on the original motions as well as the objections, and has independently researched the controlling law.

Defendant objects to Judge Welby's recommendation arguing Judge Welby erroneously concluded the information presented in Officer Dooley's affidavit supported issuing a warrant; the warrant failed to satisfy the Fourth Amendment's particularity requirement; and the Leon Good Faith Exception analysis was not proper.

Probable Cause

Defendant argues Judge Welby's conclusion that the warrant affidavit contained a fair probability that Defendant's cell phone would contain evidence of the charged crimes was erroneous. While Defendant acknowledges that the Report and Recommendation sets out non-boilerplate facts in the warrant affidavit, he argues other boilerplate facts included in the warrant affidavit yielded no nexus to the crime, i.e., the robbery at the Steak N’ Shake.

Officer Dooley's affidavit detailed specific information which connected Defendant to the robbery and to his possession of a cell phone near the time of the crime. He also detailed how individuals use cell phones to assist in crimes and to memorialize crimes.

[P]robable cause is about “fair probabilit[ies],” not near certainties. Wallace, 550 F.3d at 732 (quotation marks omitted). Even if nobody knew for sure whether the robber actually possessed a cell phone, the judges were not required to check their common sense at the door and ignore the fact that most people “compulsively carry cell phones with them all the time.” Carpenter v. United States, 585 U.S. 296, 138 S. Ct. 2206, 2218, 201 L.Ed.2d 507 (2018); see United States v. Eggerson, 999 F.3d 1121, 1125 (8th Cir. June 7, 2021) (calling cell phones “ubiquitous”). And besides, they also knew that criminals often use cell phones to “call and/or text message” others after the crime is over. As “a practical and common-sens[e] standard,” probable cause leaves plenty of room to draw reasonable “inferences” from less-than-perfect evidence. Cronin v. Peterson, 982 F.3d 1187, 1197 (8th Cir. 2020) (quotation marks omitted).

United States v. James, 3 F.4th 1102, 1105–06 (8th Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 1352, 212 L.Ed.2d 243 (2022)(footnote omitted). Defendant's objection is overruled.

Particularity

Defendant argues Judge Welby's conclusion that the warrant satisfied the Fourth Amendment's particularity requirement was flawed. He claims the warrant was overbroad. The warrant sets out a limited time period: January 1, 2021-March 3, 2021. It sets out that the search is limited to records that relate to violations of 18 U.S.C. § 1951 and 924(c). The time period listed allows a search that might provide evidence of planning and memorializing the robbery. This Court agrees that this period is not too broad or general, under the totality of the circumstances.

Leon Good Faith Exception

Finally, Defendant once again argues that the Court should reject the Recommendation to deny his motion to suppress because it includes discussion of the Leon good faith exception to excluding the evidence seized pursuant to a warrant that lacked probable cause or particularity. Defendant argues that if the warrant was legal, the Leon exception does not apply in this matter. The Court agrees. Judge Welby clearly articulated that the warrant was indeed based on probable cause and was sufficiently particular in its description of what was to be seized and the limits of the search. Judge Welby's discussion of the Leon exception was provided in the sense of “even if.” Defendant's objection for rejecting Judge Welby's recommendation because of the Leon discussion does not provide a meritorious basis for rejection. The objection is overruled.

Judge Welby thoroughly analyzes the law regarding seizure of Defendant's cell phone and search of the contents of the phone. Defendant submits nothing to establish any of Judge Welby's findings were contrary to the law or facts in this matter. Based on the totality of the circumstances, the Court concludes Judge Welby's recommendation is based on sound legal authority and detailed analysis. Upon review, the Court adopts the Report and Recommendation in toto.

Accordingly,

IT IS HEREBY ORDERED that Defendant's Motion to Suppress Physical Evidence and the Supplemental Motion to Suppress Physical Evidence Seized from Cellular Phone, [Doc. No's. 44 and 58, respectively], are denied.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on Defendant Jonathan Davis’ Motion and Supplemental Motion to Suppress Physical Evidence Seized from Cellular Phone. (ECF Nos. 44, 58). The United States of America has filed responses to both motions. (ECF Nos. 47, 59). All pretrial matters were referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). The undersigned recommends the motions be denied.

I. BACKGROUND

On March 4, 2021, Mr. Davis was charged by complaint with one count of a Hobbs Act Robbery in violation of 18 U.S.C. § 1951. (ECF No. 1). On March 10, 2021, a grand jury returned a two-count indictment charging Mr. Davis with obstructing, delaying, or affecting commerce or the movement of any article in commerce or attempt to do so by robbery in violation of 18 U.S.C. § 1951(a) and possession and brandishing of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). (ECF Nos. 12, 13).

On August 12, 2021, Federal Bureau of Investigation Task Force Officer Stanley Dooley submitted an Application for a Search Warrant requesting the search and forensic analysis of Mr. Davis’ red Apple iPhone. See 4:21-MJ-1324-JMB, ECF No. 1. In support of the Application, Officer Dooley submitted an Affidavit attesting that based on his knowledge about the instant matter, his professional training, and experience with criminal investigations, he believed there was probable cause to search Mr. Davis’ cellular phone for evidence of the charged offenses. Within the Affidavit, Officer Dooley expressed his familiarity with the numerous ways an individual can use a cellular phone, and that such a device is generally used by criminals to advance, commit, and display images and information about their illegal activities.

Officer Dooley further stated that on January 23, 2021, at approximately 12:30 a.m., an armed robbery occurred at the Steak N’ Shake restaurant, located at 9550 Natural Bridge Road, Berkeley, Missouri 63134. Mr. Davis had previously worked at the restaurant for over a year and ended his employment approximately two months prior to the robbery. A surveillance video showed the perpetrator holding a gun to the victim employee's neck. This victim and another employee who witnessed the robbery identified Mr. Davis as the perpetrator to law enforcement officials. The victim also identified Mr. Davis as the perpetrator during a photographic line-up.

Two days after the incident, a Steak N’ Shake employee provided the Berkeley Police Department with Mr. Davis’ cellular phone number. On March 2, 2021, Mr. Davis was arrested for an unrelated incident. He was in possession of the phone at issue here and wearing clothing similar to the individual in the surveillance video. During questioning, Mr. Davis denied involvement in the January 23, 2021 robbery and asserted he was speaking to his girlfriend on his phone at the time of the crime. Officers seized the phone.

After reviewing the Application and supporting Affidavit, the Honorable Magistrate Judge John Bodenhausen signed the search warrant permitting the search and forensic examination of Mr. Davis’ red Apple iPhone. See 4:21-MJ-1324-JMB, ECF No. 2. The Government introduced this warrant and the officer's affidavit in support of the search of the red Apple iPhone as Exhibit 1 during the suppression hearing. The warrant specifically permitted the following search and seizure:

1. All records on the Target Device described in Attachment A that relate to violations of Title 18, United States Code, Section 1951 (Hobbs Act robbery) and 924(c) (Possession of a Firearm in Furtherance of a Crime of Violence (heretofore and hereinafter “subject offenses”) and involve JONATHAN DAVIS from January 1, 2021 to March 3, 2021, including:

a. Any information recording DAVIS’ schedule or travel from January l, 2021 to March 3, 2021;

b. Any information related to the illegal possession of firearms and crimes of violence, including armed business robberies, including but not limited to photographs, text messages or instant messages, call logs, social media content, internet searches, IP address information, and portable media utilized;

c. GPS coordinates of the Target Device during the times of the identified robbery;

2. Evidence of user attribution showing who used or owned the Target Device at the time the things described in this warrant were created, edited, or deleted, such as logs, phonebooks, saved usernames and passwords, documents, and browsing history;

As used above, the terms “records” and “information” include all of the foregoing items of evidence in whatever form and by whatever means they may have been created or stored, including any form of computer or electronic storage (such as flash memory or other media that can store data) and any photographic form.

Id.

II. Motion to Suppress and Supplemental Motion to Suppress

Mr. Davis seeks to suppress the evidence seized from the search of his cellular phone, arguing the warrant authorizing the search was not supported by probable cause. (ECF No. 44). Mr. Davis argues the Affidavit contained “generic, boilerplate language.” Id. at 2. Specifically, he asserts probable cause was lacking because: (1) “[n]othing in the affidavit says there is any indication that a cell phone was used in the commission of the alleged offense;” (2) “[n]othing about the nature of the offense suggests that a cell phone was a necessary instrumentality of the offense;” (3) “[n]othing in the affidavit supported the general assertion that this cell phone had operated as an instrumentality of the alleged crime;” and (4) “[n]othing in the affidavit indicated that the cell phone was actually present at the scene of the alleged offense.” Id. at 5-6.

The Government responded by arguing the Affidavit provided sufficient probable cause because Officer Dooley included a detailed description of the robbery, the victim's identification of Mr. Davis as the perpetrator, information that Mr. Davis owned a phone at the time of the robbery and when he was arrested, and Mr. Davis made a statement to the police that he was not present at the time of the robbery and was talking to his girlfriend on his phone at the time of the robbery. (ECF No. 47 at 5-6). The Government also contended that it was not necessary for the affidavit to contain facts alleging a phone was used during the robbery because even without such direct evidence, the Magistrate Judge knew from the Affidavit that phones can be used to facilitate crimes and often contain location data. Id. at 6. Alternatively, the Government asserted that even if the warrant lacked probable cause, the evidence obtained was still admissible under the good faith exception enumerated under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

On May 16, 2022, the undersigned held an evidentiary hearing on the pending Motion to Suppress. (ECF No. 55). Neither party presented evidence or testimony at the hearing, other than the Application for Search Warrant and accompanying Affidavit. During the hearing, Mr. Davis asserted a new argument that the search warrant also lacked the required particularity to be valid. Because the issue of particularity had not been addressed in Mr. Davis’ original motion, the Court permitted him to file a supplemental motion. Following the hearing, a transcript was filed (ECF No. 57), and the parties filed post-hearing briefings. (ECF Nos. 58, 59).

In the supplemental motion, Mr. Davis again argues that the search warrant is deficient because it lacks probable cause. Mr. Davis points to sections of the search warrant in which Officer Dooley generally stated that criminals “typically” use phones to commit crimes, co-conspirators often communicate via phones, criminals may use mapping and location services to plan and facilitate their crimes, and location data can indicate the user's pattern or behavior or provide data related to various places to perpetrate crimes. Mr. Davis argues these statements, among others, do not offer a tangible basis to believe a phone was associated with the Steak N’ Shake robbery and fails to identify exactly what would be found by searching his phone.

In addition to probable cause, Mr. Davis argues the warrant failed to adhere to the Fourth Amendment's particularity requirement. Mr. Davis takes issue with the warrant's authorization to search for “any information related to the illegal possession of firearms and crimes of violence, including armed business robberies” and “any information recording DAVIS’ schedule or travel from January l, 2021 to March 3, 2021.” He argues the former allows the search to be unlimited in time and permits police “to fish for evidence of any unrelated crime he conceivably could have ever committed,” while the latter allows for an improper search of information occurring well before and well after the date of the robbery.

The Government counters that the Affidavit attached to the warrant provides sufficient probable cause, and the search warrant was adequately particularized.

III. DISCUSSION

A. Probable Cause

The Fourth Amendment to the Constitution protects persons from unreasonable searches and seizures. U.S. Const. amend. IV. The Constitution also requires a court to find probable cause, supported by oath or affirmation, before issuing a search warrant. Id. Whether probable cause to issue a search warrant has been established is determined by considering the totality of the circumstances, and resolution of the question by an issuing judge should be paid great deference by reviewing courts. United States v. Hansel, 524 F.3d 841, 845 (8th Cir. 2008); Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “A warrant is supported by probable cause if there is a fair probability that contraband or evidence of a crime will be found in the place to be searched.” United States v. Reinholz, 245 F.3d 765, 776 (8th Cir. 2001) (internal quotations omitted). Probable cause is assessed from the viewpoint of a reasonably prudent officer, acting in the circumstances of a particular case. Id. Once a warrant is issued, the duty of the reviewing court is simply to ensure that the issuing court had a substantial basis for concluding that probable cause existed. Gates, 462 U.S. at 238-39, 103 S.Ct. 2317.

“Probable cause is a fluid concept that focuses on ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” United States v. Colbert, 605 F.3d 573, 576 (8th Cir. 2010) (quoting Gates, 462 U.S. at 231, 103 S.Ct. 2317); see United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007) (explaining an affidavit's sufficiency is examined using common sense and not a hypertechnical approach). A review of the sufficiency of an affidavit is not de novo, instead, “[a]n issuing judge's probable cause determination is entitled to substantial deference.” United States v. Durham, 470 F.3d 727, 733 (8th Cir. 2006); Gates, 462 U.S. at 236, 103 S.Ct. 2317.

In this case, based on the totality of the circumstances, the undersigned recommends upholding the search warrant because the issuing court had a substantial basis for concluding that probable cause existed because the affidavit showed, at minimum, a fair probability that Mr. Davis’ phone held some evidence of the crime. The Affidavit in support of the Application for the Search Warrant was not limited to what Mr. Davis describes as “boilerplate language.” To the contrary, Officer Dooley described Mr. Davis to be a former employee of Steak N’ Shake who was identified by two employees present at the time of the crime as the individual who committed the January 23, 2021 robbery. Mr. Davis was again identified as the perpetrator by one of the victims during a police photographic line-up. Officer Dooley indicated that law enforcement was provided with Mr. Davis’ cellular phone number by an employee of Steak N’ Shake. Officer Dooley explained that when Mr. Davis was arrested, he was in possession of the target phone. During questioning, Mr. Davis denied his involvement in the robbery, and stated he was using his cellular phone at the time of the crime to speak to his girlfriend.

What Mr. Davis describes as “boilerplate language,” are facts learned by Officer Dooley through his years of experience and training as a police officer. The affidavit states that criminals use cellular phones to commit crimes. It notes that criminals may use cellular phones to communicate with associates, co-conspirators, and with other non-involved third parties. Cellular phones are used to plan crimes using mapping devices, to access lists of associates, to take pictures which may memorialize criminal conduct, and possibly post them on social media, and to access the internet for information relevant to their crimes. No evidence was offered questioning the truthfulness of these statement. The undersigned finds these statements to be credible.

“Whether probable cause to issue a search warrant has been established is determined by considering the totality of the circumstances․” United States v. Brackett, 846 F.3d 987, 992 (8th Cir. 2017) (citations and internal quotations omitted). What has been described as “boilerplate language” is in fact part of the totality of the circumstances which the reviewing court must consider. In assessing reasonable suspicion, a reviewing court considers the “totality of the circumstances,” which can include an officer's training and experience. United States v. Noriega, 35 F.4th 643, 650 (8th Cir. 2022) (citation and internal quotations omitted). See also United States v. Williams, 976 F.3d 807, 810 (8th Cir. 2020) (relying on officer's training and experience in finding good faith reliance on warrant).

Officer Dooley did not simply set forth only the knowledge he learned from his experience and training. He provided a description of the facts of the crime, Mr. Davis’ identification, the fact that Mr. Davis had a phone at the time of the robbery and was allegedly using that phone to call his girlfriend at the time of the robbery. The officer's professional experience and training, combined with the specific facts of the case, provided a sufficient nexus of the evidence of the crime to the cellular phone he was requesting to search. United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000) (“there must be evidence of a nexus between the [evidence sought] and the place to be searched”).

The issuing court in this case had a substantial basis for concluding that probable cause existed because the affidavit showed a fair probability that Mr. Davis possessed a phone at the time of the robbery and was allegedly using that phone to call his girlfriend at that exact time. Evidence of whether Mr. Davis was in fact making such a call that night and the location of Mr. Davis’ phone at the time of the robbery was likely to be found on the target phone. See United States v. Augard, 954 F.3d 1090, 1094 (8th Cir. 2020) (recognizing law enforcement officers may make reasonable inferences in preparing affidavits in support of a search warrant). Probable cause exists, if under the totality of the circumstances, there is a showing of facts that “create a fair probability that evidence of a crime will be found in the place to be searched.” United States v. Wallace, 550 F.3d 729, 732 (8th Cir. 2008). The issuing court had a “substantial basis for concluding that a search would uncover evidence of wrongdoing.” United States v. Stevens, 530 F.3d 714, 718 (8th Cir. 2008) (citing Gates, 462 U.S. at 236, 103 S.Ct. 2317).

Finally, Mr. Davis notes the phone was not used in the actual robbery, nor was it an instrumentality of the crime. However, the law does not require such findings. “In Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the Supreme Court did away with ‘the distinction between ‘mere evidence’ and instrumentalities, fruits of crime, or contraband.’ ” United States v. Saddler, 19 F.4th 1035, 1039 (8th Cir. 2021) (quoting Hayden, 387 U.S. at 301, 87 S.Ct. 1642). “Probable cause to believe that “mere evidence” will be discovered is enough to support a search warrant.” Id. “Thus, in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.” Id. (quoting Hayden, 387 U.S. at 307, 87 S.Ct. 1642). The undersigned finds the issuing court had a substantial basis for concluding that probable cause existed and that there was a sufficient nexus between the evidence sought and the item to be searched.

B. Particularity

In addition to probable cause, the Fourth Amendment also requires a search warrant must describe with particularity the place to be searched and the things to be seized. U.S. Const. amend. IV; Rule 41, Federal Rules of Criminal Procedure. “The degree of specificity required will depend on the circumstances of the case and on the type of items involved.” United States v. Horn, 187 F.3d 781, 788 (8th Cir. 1999). The particularity requirement under the Fourth Amendment is not a “hypertechnical” standard, but one of “practical accuracy.” United States v. Peters, 92 F.3d 768, 769-770 (8th Cir. 1996). The Fourth Amendment protects against “wide-ranging exploratory searches” unsupported by probable cause. United States v. Rosa, 626 F.3d 56, 61 (2d Cir. 2010) (quoting Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987)).

There are two-dimensions to the particularity requirement. See Dalia v. United States, 441 U.S. 238, 255, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). First, the warrant must particularly describe the place, person, or thing to be searched. See id. at 255-57, 99 S.Ct. 1682. Second, the warrant must particularly describe the evidence or items to be seized. Id. Accord United States v. Grubbs, 547 U.S. 90, 97, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) (“The Fourth Amendment, however, does not set forth some general ‘particularity requirement.’ It specifies only two matters that must be ‘particularly describ[ed]’ in the warrant: ‘the place to be searched’ and ‘the persons or things to be seized’ ”).

As the Eighth Circuit has explained, “[t]he particularity requirement can be satisfied by listing the items to be seized in the warrant itself or in an affidavit that is incorporated into the warrant.” United States v. Szczerba, 897 F.3d 929, 937 (8th Cir. 2018) (citation omitted), cert. denied, ––– U.S. ––––, 139 S. Ct. 1544, 203 L.Ed.2d 717 (2019). Moreover, there is “[n]othing in the language of the Constitution or in [the Supreme] Court's decisions interpreting [the precise and clear words of the Fourth Amendment] that” requires search warrants to also “include a specification of the precise manner in which they are to be executed.” Grubbs, 547 U.S. at 98, 126 S.Ct. 1494 (internal quotation marks omitted) (quoting Dalia, 441 U.S. at 257, 99 S.Ct. 1682). There is no doubt the warrant properly describes Mr. Davis’ red Apple iPhone as the thing which was to be searched. However, Mr. Davis challenges the scope of the seizures authorized in the warrant.

First, Mr. Davis argues the search warrant's authorization to seize “any information related to the illegal possession of firearms and crimes of violence, including armed robberies,” fails the particularity requirement because it lacks a temporal limitation and gave police a blanket license to search for potential evidence relating to any “crime of violence” unrelated to the January 2021 robbery. Second, Mr. Davis argues the search warrant's authorization to seize “any information recording DAVIS’ schedule or travel from January 1, 2021 to March 3, 2021” fails the particularity requirement because “[w]hile tracking Mr. Davis’ schedule and travel at or near the time of the robbery may have been reasonable, the three-month time span authorized in the warrant was not tailored to any justification for the search.”

Applying the above principles to the search warrant here, it is clear that it is sufficiently particularized as required by the Fourth Amendment. The search warrant specifically provides, in pertinent part:

All records on the Target Device described in Attachment A that relate to violations of Title 18, United States Code, Section 1951 (Hobbs Act robbery) and 924(c) (Possession of a Firearm in Furtherance of a Crime of Violence ․) and involve JONATHAN DAVIS from January 1, 2021 to March 3, 2021[.]

4:21-MJ-1324-JMB, ECF No. 2 (emphasis added). Despite Mr. Davis’ argument, the warrant clearly establishes a temporal limitation of an approximately two-month period and directs the search shall be limited to records related to the two specific charged crimes, Hobbs Act robbery and Possession of a Firearm in Furtherance of a Crime of Violence.

Thus, law enforcement's search of information regarding his “schedule or travel” and “illegal possession of firearms and crimes of violence” must be limited to (1) the same crimes he is charged with in his indictment; and (2) within an approximately sixty-day period. The contents to be searched are not overbroad but, instead, are explicitly and specifically limited. See United States v. Smith, 2019 WL 6117794, *8 (W.D. Mo. Sept. 2019) (“Attachment B to the Application for Search Warrant, and affidavit ․ sets out the specific categories of items to be seized and limits the items to materials which constitute evidence of identified criminal offenses, namely violations of ‘18 U.S.C. § 2423(b) (travel with intent to engage in illicit sexual conduct), 18 U.S.C. § 2251(a) (production of child pornography), 18 U.S.C. § 2252A(a)(2) (receipt of child pornography), and 18 U.S.C. § 2252A(a)(5)(B) (possession of child pornography).’ Although the categories of items are broad, the limitations are clear.”).

To the extent Mr. Davis argues the two-month period is too broad, the undersigned cannot agree. The Steak N’ Shake robbery occurred on January 23, 2021. The search warrant limits the search of Mr. Davis’ cellular phone to three weeks prior to the robbery and five weeks after the robbery. As the Government points out in its post-hearing brief, Mr. Davis does not cite to any authority to support that searching for records on a cellular phone within an eight-week period is too general or broad.

C. Good Faith Exception

Even if probable cause or particularity did not exist for the warrant authorizing a search of his cell phone (which this Court does not believe to be the case), the Leon good faith exception would support the admissibility of the evidence seized pursuant to the warrant since it appears that the officers executing the warrant were acting in “objectively reasonable reliance” on a warrant issued by a neutral judge. See Leon, 468 U.S. at 922, 104 S.Ct. 3405; United States v. Murphy, 69 F.3d 237, 241 (8th Cir. 1995), cert. denied, 516 U.S. 1153, 116 S.Ct. 1032, 134 L.Ed.2d 109 (1996). Under this exception, “absent allegations that the [judge] was not neutral, ‘suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.’ ” United States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998) (quoting Leon, 468 U.S. at 926, 104 S.Ct. 3405). Mr. Davis has not alleged any basis for concluding that the Leon good faith exception to the exclusionary rule does not apply in this case, other than to argue “the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” As discussed above, Officer Dooley did not submit a “bare bones affidavit” as Mr. Davis argues. The law enforcement officers had probable cause to obtain the search warrant, and the officers relied in good faith on its issuance. Therefore, the evidence was seized lawfully.

Accordingly,

IT IS HEREBY RECOMMENDED that Defendant Davis’ Motion to Suppress Physical Evidence (ECF No. 44) be DENIED.

IT IS FURTHER RECOMMENDED that Defendant Davis’ Supplemental Motion to Suppress Evidence (ECF No. 58) be DENIED.

The parties are advised that they have 14 days in which to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). Failure to timely file objections may result in a waiver of the right to appeal questions of fact. Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).

A trial date will be set by further order of the Court.

Dated this 21st day of July, 2022.

HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE