BURLINGTON, VT – In a motion to dismiss hearing last Thursday in the District of Vermont Federal Courthouse, Assistant Federal Public Defender Steven Barth argued the court should suppress all evidence derived from an accused man’s cell phone because the authorities waited more than a month to seek a search warrant, violating the accused’s Fourth Amendment rights.
The accused is charged in a two-count indictment with conspiracy to commit wire fraud as well as money-laundering. In what’s known as a “grandfather scheme,” the accused allegedly took part in a widespread fraud case targeting older individuals in Vermont and other locations.
IRS Criminal Investigations special agent Anders Ostrum, a witness called by Assistant U.S. Attorney Paul Van De Graff’s and Assistant U.S. Attorney Nathaniel Burris, testified about the timeline of obtaining and executing the search warrant for the accused’s residence and subsequent seizure of his iPhone pursuant to arrest.
Under cross-examination, FDPD Barth argued that if special agent Ostrum made the iPhone search warrant request in Florida (where the search warrant for the accused’s residence occurred), as opposed to in Vermont, the process would have been much faster.
FDPD Barth noted the difficulties that ensued due to the accused’s inability to have his phone during the lengthy warrant process.
Although the arrest of the accused occurred on April 12, 2023, Ostrum testified he began the process for the search warrant of the phone on April 25, 2023.
The search warrant was not submitted until May 17, 2023, one day after the phone arrived in Burlington, VT. The phone was finally searched on May 18, 2023, resulting in a 36-day delay in seeking the warrant, as noted in the Motion to Suppress.
On April 11, 2023, Ostrum said he already had a search warrant for items within the accused’s residence in Miami FL, but needed a different search warrant for the accused’s phone which was seized from his girlfriend’s house.
During cross-examination, FDPD Barth argued it wouldn’t have required much more information to get a follow-up warrant to seize the accused’s phone.
Agent Ostrum testified he decided to carry out the search warrant request in Vermont for the sake of expediency, stating the process in Florida appeared to him “more cumbersome” than typical and would likely have taken longer.
However, FDPD Barth argued the process would have been quicker in Florida, since ordering the warrant in Vermont involved the mailing of materials back and forth between Florida and Vermont, and slow communication between Ostrum and several Homeland Security Investigations (HSI) agents who were located in different parts of the country.
When asked by FDPD Barth if he ever indicated that moving quicker (on the search warrant) was a priority to the HSI agents in Florida, Ostrum acknowledged he would’ve liked the process to move along quicker but said he didn’t want to appear “pushy.”
According to evidence presented by U.S. Attorney Burris, Ostrum had been in contact with collateral agents in Miami who had assisted with the arrest of the accused. According to Ostrum, these agents had information that was required to fill out the application for the search warrant.
However, the evidence presented showed that the Miami agents were out of town on temporary duty, which caused a delay in receiving the information required for the warrant application.
FDPD Barth argued the special agent could have attempted to contact other HSI agents or been more persistent in his communications in order to speed up the process of obtaining the warrant.
Special agent Ostrum testified additional delays were caused by the Miami office requiring a Faraday bag, a device that protects information on electronic devices from being erased, to be shipped from Vermont to Florida. The phone and Faraday bag then had to be mailed back to Vermont.
FDPD Barth stated that this mailing process “only explains a short delay.”
In the Motion to Suppress, it was stated that the 36-day delay in seeking a warrant for the accused’s phone was in violation of the Fourth Amendment.
The motion to suppress states, “In general, if law enforcement authorities have probable cause to believe that property contains evidence of a crime or contraband, the Fourth Amendment permits the seizure of the property to prevent the destruction or disappearance of the evidence or contraband provided that the authorities seek a warrant to search the property.
“The Fourth Amendment’s reasonableness standard ‘presupposes that the police will act with diligence to apply for the warrant,'” Smith, 967 F.3d 205, and the Second Circuit has held that “even a seizure based on probable cause is unconstitutional if police act with unreasonable delay in securing a warrant.”
FDPD Barth noted a previous application for a search warrant submitted by special agent Ostrum in October 2022 for the case of the United States vs. Hollins, in which the judge noted the warrant may not have been submitted in a timely manner, and evidence was suppressed.
As stated in the Motion to Suppress, “Thus, Agent Ostrum and the government had been expressly put on notice about Smith and about the need to seek warrants with diligence.”
Judge William K. Sessions concluded the hearing by setting a supplemental briefing date by which all parties must have all additional submissions filed.
