U.S. v. Taylor
U.S. v. Taylor
2017 WL 11495616 (E.D. Mo. 2017)
February 24, 2017

Noce, David D.,  United States Magistrate Judge

Privacy
GPS
Search and Seizure
Criminal
Photograph
Mobile Device
Forensic Examination
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Summary
The court found that the government's acquisition of ESI, such as precision location information from T-Mobile and information associated with a cell phone from AT&T, was lawful and did not violate any of defendant's rights. Additionally, the court found that the SIM card was not ESI and was not subject to the same protections.
UNITED STATES OF AMERICA, Plaintiff,
v.
DWANE TAYLOR, Defendant
No. 4:15 CR 335 CDP / DDN
United States District Court, E.D. Missouri, Eastern Division
Filed February 24, 2017

Counsel

Thomas S. Rea, Office of U.S. Attorney, St. Louis, MO, for Plaintiff
Noce, David D., United States Magistrate Judge

ORDER AND RECOMMENDATION REGARDING MOTIONS TO SUPPRESS EVIDENCE

*1 This action is before the court on the pretrial motions of the parties, which were referred to the undersigned Magistrate Judge under 28 U.S.C. § 636(b). Remaining for consideration are the motions of defendant Dwane Taylor to suppress evidence (ECF Nos. 13 oral, 88, 89, 117) and the motion of the United States for a determination by the court of the admissibility or not of any arguably suppressible evidence (ECF No. 14 oral). Evidentiary hearings were held on these matters on September 26, October 19, November 7, and November 9, 2016. Transcripts of the hearings were filed on December 9, 2016 (ECF No. 145) and on January 17, 2017 (ECF Nos. 151, 152).
 
From the evidence adduced during the hearings, and considering the memoranda of the parties, the undersigned makes the following findings of fact and conclusions of law:
 
FACTS
1. On December 16, 2014, Erin Davis was shot and killed in the City of St. Louis. On January 16, 2015, Juanita Davis was also shot to death in the City of St. Louis. Law enforcement investigation indicated that the same 9 mm. handgun was used in both killings.
 
Statements in February 2015
2. In February 2015, law enforcement did not acquire any statement by Dwane Taylor. Recognizing this, at the suppression hearing held on September 26, 2016, defendant Taylor through defense counsel withdrew his motion to suppress any statement that his motion indicated was given by him during February 2015. (ECF No. 145, Tr. of Hr’g held on Sept. 26, 2016, at 7).
 
March 12, 2015 search of Motorola cell phone
3. On March 12, 2015, law enforcement obtained informational data from the Motorola cell phone that belonged to Juanita Davis. (ECF No. 88 at 1). This phone was recovered at the scene of her shooting. (ECF No. 145 at 5).
 
4. In June and July 2015 law enforcement received detailed information that Dwane Taylor, to one or more persons in the community, admitted shooting both women and still having the firearm in his possession. See Case No. 4:15 MJ 6207, ECF No. 1 at 3.
 
June 2015 search of Samsung cell phone; statements of defendant
5. a. In June 2015, an individual named Terry Tobey was murdered in the City of Sunset Hills, Missouri. The Sunset Hills Police Department led the investigation of Tobey’s killing. The St. Louis Metropolitan Major Case Squad also participated in the investigation. As a member of the Major Case Squad, Kirkwood, Missouri Police Detective Rashad Akinyemi participated in the Tobey killing investigation. (See Def. Hr’g Ex. C, Police Report).
 
b. On June 8, 2015, Det. Akinyemi and other officers went to the residence of Leann Lomere to interview her about the Tobey killing. Ms. Lomere had previously been married to Tobey’s son. Also present at the residence was Dwane Taylor, a friend of Ms. Lomere. In the presence of Dwane Taylor, Det. Akinyemi interviewed Ms. Lomere; before that interview, Det. Akinyemi had never met Taylor. At the residence, Taylor was pleasant and cooperative with the officers.
 
c. On June 9, 2015 Det. Akinyemi and two officers again went to Ms. Lomere’s residence. Again, Dwane Taylor was also present, on the front porch steps of the residence. At that time, Det. Akinyemi conducted an informal, brief field interview of Taylor. In that field interview, Taylor was asked whether he would consent to a forensic examination of his cell phone, a Samsung phone to which was assigned phone number xxx-xxx-1365. In response, Taylor agreed that Det. Akinyemi could examine his phone during that interview, but on condition that the phone not leave his presence. Det. Akinyemi agreed to this condition and asked Taylor to sign a written consent form. Taylor stated he knew he did not have to consent but refused to sign because he had orally consented. The detective then attempted to examine Taylor’s cell phone with his laptop computer. However, the detective’s laptop computer did not have the software required to fully examine the phone. Det. Akinyemi handed the phone back to Taylor. He also gave Taylor his contact information. Again, during this contact, Taylor was pleasant and cooperative with the officer.
 
*2 d. On June 10, 2015 Dwane Taylor phoned Det. Akinyemi and told the officer he believed the investigation of Terry Tobey’s death was focusing on him. He said he wanted to cooperate with the police in the investigation and to clear his name of any suspicion. Taylor said he was willing to go where the investigators wanted to talk to him. Det. Akinyemi told Taylor he was not aware other investigators wanted to talk with him, but that he would contact them to confirm this. Det. Akinyemi contacted other investigators and learned that no one wanted to interview Taylor. However, he also learned that they had spoken with Taylor’s associates and he believed Taylor thought this meant the police were considering him a suspect.
 
e. In his callback to Taylor on June 10, 2015 Det. Akinyemi told Taylor what the other officers said. In this call, the detective asked Taylor if the police could analyze his cell phone. Taylor agreed to allow the police to analyze his phone. To accomplish this, Det. Akinyemi asked Taylor to meet him at the regional police forensic lab in Clayton, Missouri. Taylor agreed.
 
f. Still later on June 10, Taylor drove himself alone to the regional police forensic lab. There he met Det. Akinyemi and gave him his cell phone. The detective asked Taylor to sign a written consent form, showing his agreement for this analysis by the police. Taylor refused to sign a written consent form, but orally gave his consent. Taylor again said he thought his oral consent was enough and that there was no need for him to sign a written consent form. Taylor then gave the phone to the officer and remained in the lab’s lobby area.
 
g. After three hours, a forensic technician told Det. Akinyemi that the analysis of the phone would take several more hours, because it had more memory storage than initially believed. Det. Akinyemi told Taylor this and asked Taylor whether he would leave his phone at the lab overnight. Taylor agreed to do this, but on two conditions. First, he wanted to retrieve his SIM card[1] from the phone. And second, he wanted the phone returned to him as soon as possible. Det. Akinyemi agreed with these conditions.
 
h. Det. Akinyemi then retrieved Taylor’s SIM card and got his police digital voice recorder so he could record Taylor’s oral consent. Taylor again refused to sign a written consent form. Instead, Det. Akinyemi recorded Taylor’s oral consent (Gov. Exs. 1, compact disk, and 1A, Tr. of compact disk recording), gave Taylor the SIM card, and walked him out of the building. Taylor left the area. His cell phone was processed overnight by the police forensic lab.
 
i. On June 10, 2015 Dwane Taylor was in his late 30’s in age. He appeared to Det. Akinyemi to be of normal intelligence, without any indication of mental illness or defect. Taylor did not appear to be intoxicated from any substance. Det. Akinyemi knew that Taylor had prior experience with the criminal justice system and was then on state parole. He believed Taylor understood that he was not required to consent to the analysis or to leave his cell phone with the police lab. No promises or coercion were used to get Taylor to cooperate with the police investigation. Indeed, he had previously expressed his interest in the police clearing him as a suspect in the investigation.
 
j. On June 10, 2015 Taylor was not arrested or detained in any way. And he never objected to his phone being searched and never objected to giving his phone to the police lab for analysis. On June 10, 2015 Det. Akinyemi did not advise Taylor of his Miranda rights. Throughout June 10, Taylor was cooperative.
 
*3 k. No warrant or other court order was obtained for the police analysis of Dwane Taylor’s cell phone.
 
l. On June 11, 2015 the police lab completed its processing of Dwane Taylor’s cell phone. Det. Akinyemi unsuccessfully attempted to phone Taylor on that day about the processing. When he could not reach Taylor, the detective left the phone with the Sunset Hills Police Department for him because it was the lead agency in the Tobey murder investigation.
 
m. On June 17, 2015 Taylor went to the Sunset Hills Police Department and got the phone. (Gov. Ex. 4, receipt for return of cell phone to Taylor). While at that police station on June 17, 2015, Taylor’s conversation with a Sunset Hills police officer was audio-recorded.
 
n. Before June 17, 2015, Taylor never complained to law enforcement that he had not gotten his phone back, that his phone was searched, or that he never consented to the search of his phone.
 
June 17, 2015 statement of defendant to Sunset Hills Police Dept.
6. As stated, on June 17, 2015 when the Sunset Hills Police Department returned the cell phone to Taylor at that police station Taylor conversed with a Sunset Hills police officer. This conversation was audio-recorded.[2]
 
June 17, 2015, collection of DNA; photos of defendant’s vehicle
7. On this day, law enforcement officers collected a DNA sample from him.[3] The police also took photos of his automobile, which defendant had parked on a lot in public view. Gov. Hr’g Ex. 6.
 
Original indictment filed
8. On July 16, 2015 the original indictment in this case was filed, charging only Dwane Taylor with three counts of drug trafficking offenses involving the killings of Erin Davis and Juanita Davis. (ECF No. 1). An arrest warrant for Taylor was issued on the indictment. At that time the government did not know Taylor’s whereabouts. However, from the Sunset Hills investigation of the killing of Terry Tobey and its interview of Dwane Taylor, the federal agents knew Taylor used the cell phone with number xxx-xxx-1365.
 
July 2015 cell site location information
9. a. Between July 20 and 24, 2015, pursuant to a federal warrant, in an effort to locate Taylor, law enforcement authorities used information provided by telecommunications provider T-Mobile to locate Dwane Taylor’s cell phone, with number xxx-xxx-1365 (-1365 cell phone). The warrant also authorized the operation of a cell site simulator device to obtain GPS location information for the same cell phone. (Gov. Hr’g Exs. 17A, 17B, 17C, 20, 21A, 21B); Case No. 4:15 MJ 6185.
 
*4 b. More specifically, on July 20, 2015, the United States applied for, and federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Special Agent Mark Wynn submitted his written, sworn affidavit in support of a court order relating to the operation of the-1365 cell phone. The application sought an order (a) directing T-Mobile to provide the government with certain telecommunications records and information including precision cell site location information, but not the contents of any communication; (b) authorizing the acquisition of pen register and trap and trace information; and (c) authorizing the operation of a cell site simulator. See Case No. 4:15 MJ 6185, ECF Nos. 1, 1-1.
 
c. In his affidavit, Special Agent Wynn described his law enforcement training, experience, and expertise. He described the information law enforcement authorities had acquired identifying Dwane Taylor as responsible for the federal crimes that involved the killing of Erin Davis and Juanita Davis. He described the issuance of the federal grand jury indictment of Taylor and the arrest warrant for him on July 16, 2015, and his current status as a fugitive. He described in his affidavit the importance of locating Taylor’s cell phone so that Taylor himself could be located and arrested. His affidavit also described how cell phones communicate with the nearest cell tower and how this information would aid in locating the cell phone and Taylor.
 
d. Agent Wynn’s affidavit also described how it might be possible to locate a cell phone with information directly from the cell phone, without the use of the telecommunications provider. The affidavit described that this can occur with the use of an electronic cell site simulator, which is a form of pen register device that can mimic to a degree the activities of a cell tower. After the general location of the cell phone is determined with the information provided by the telecommunications services provider and related cell towers, law enforcement can go to this general area and use a cell site simulator to obtain more precise information about the location of the cell phone.
 
e. More specifically, the affidavit stated:
Once the general location of the subject cellular telephone is identified (e.g., using cell site location records or E-911/precision location information), a cell-site simulator can be used in the vicinity of the subject cellular telephone to detect radio signals that are emitted automatically at the time the subject cellular telephone is turned on, and periodically thereafter as long as the phone remains on, regardless of whether a call is being made, to communicate with the cellular infrastructure, including cell towers. These signals contain identifying numbers for the telephone (e.g., the telephone number and Electronic Serial Number (“ESN”) or International Mobile Subscriber Identification (“IMSI”) number). The investigative agency(ies) can use these cell-site simulator techniques to attempt to identify the location from which the subject cellular telephone is operating. The techniques do not intercept any content of communications, but rather search for signals emitted by the subject cellular telephone, which are identified through its identifying numbers (which are already known to law enforcement by other means). The cell site simulator may cause a temporary disruption of services. Once the subject cellular telephone’s signals are identified (typically, through the use of a cell-site simulator, which can be used only when it is in the general proximity of the subject cellular telephone), the strength of the signal emitted by the subject cellular telephone can be analyzed to ascertain the general direction and location of the signal, which can assist in identifying the general location from which the subject cellular telephone is operating. After the location is determined, data not associated with the operation is deleted.
*5 * * *
 
None of the investigative techniques that may be employed as a result of the present application and affidavit require a physical intrusion into a private space or a physical trespass.
Case No. 4:15 MJ 6185, ECF No. 1-1, at 7-8.
 
f. Upon this application and this affidavit, at 4:30 p.m. on July 20, 2015, the Honorable Thomas C. Mummert III issued a Warrant and Order authorizing the law enforcement activities sought. Id. at ECF No. 2. Regarding the cell site simulator authorization, Judge Mummert ordered:
IT IS FURTHER ORDERED that the investigative agency(ies) is authorized to install, or cause to be installed, and use a cell-site simulator device to record or decode dialing, routing, addressing, or signaling information transmitted by the subject cellular telephone ....
Id. at 6.
 
g. Between July 20 and 22, 2015 pursuant to the federal warrant, the T-Mobile company provided the government with precision location information for the - 1365 cell phone. This information included a map identifying the general area where T-Mobile personnel located the -1365 cell phone, i.e. 1513 Ogden in St. Louis, Missouri, a residence situated between two vacant lots. T-Mobile personnel provided this information to Agent Wynn.
 
h. At approximately 8:00 a.m. on July 22, 2015 with this information, Wynn drove his vehicle past 1513 Ogden. As he did so, he saw Dwane Taylor outside the residence at 1513 Ogden. Thereafter, surveillance photos were taken of Taylor around 1513 Ogden. (Gov. Hr’g Ex. 19).
 
i. Around 4:00 p.m. on July 22, 2015 ATF Technical Surveillance Specialist Jason French, pursuant to the federal warrant, operated the cell site simulator device. This device, using an omni-directional signal transmission located Dwane Taylor’s cell phone at 1513 Ogden. Before he operated the cell site simulator, Agent French did not know that Agent Wynn had already located Taylor at 1513 Ogden. In operation, the cell site simulator emits an omni-directional signal and then detects a return signal from the target cell phone. Later, Agent French also did physical surveillance of 1513 Ogden and personally saw Taylor standing near one of his automobiles.
 
July 24, 2015 arrest of defendant; seizure of items from his person
10. On July 24, 2015 as a result the physical surveillance of 1513 Ogden, Dwane Taylor was arrested as he exited that residence. Following his arrest, officers searched him and seized from his person $1,000.00 in cash and a bottle of Dormin, a substance commonly known to be used to dilute heroin for illicit distribution. (ECF No. 141 at 5). Taylor had not been arrested prior to July 24, due to law enforcement personnel non-availability.
 
July 24, 2015 warrant for AT&T data for cell phone with number xxx-xxx-2826
11. a. On July 24, 2015, ATF Special Agent Jeff Thayer applied for a warrant, under 18 U.S.C. § 2703(c)(1)(A), ordering the AT&T company to provide information associated with cell phone xxx-xxx-2826 (-2826 cell phone). (Gov. Ex. 13; Case No. 4:15 MJ 6204).
 
b. In support of the application, Agent Thayer submitted his sworn, written affidavit. In the affidavit, Agent Thayer described his law enforcement background and training. For the probable cause portion of the affidavit, he described the investigation of “Dewayne (sic) Taylor (DOB JANUARY 19, 1979)” following the December 16, 2014 discovery of the body of Erin Davis inside an apartment in St. Louis. In the apartment police found an FC 9 mm. Luger shell casing. (Case No. 4:15 MJ 6204, ECF No. 1 at 2-3). One month later, the body of Juanita Davis was found in the street near 4420 Pennsylvania in St. Louis. Near her body were several similar 9 mm. Luger shell casings. During the investigations of these deaths, the police were told that Dwane Taylor shot and killed these women in retaliation for Juanita Davis taking a vehicle and narcotics from him in 2014. (Id. at 4). The police were given specific information about Taylor’s use of cell phone -2826 to find and kill Erin Davis and Juanita Davis. Taylor’s use of -2826 was confirmed by the police examination of Juanita Davis’s cell phone. (Id. at 4-5).
 
*6 c. Agent Thayer’s affidavit also described how the precise location history of the -2826 cell phone and the history of the calls made with it would provide relevant information in the investigation of this case. (Id. at 5-7).
 
d. On July 24, 2015 at 11:00 a.m., Judge Mummert issued a warrant ordering AT&T to provide the government specific information relating to the -2826 cell phone. (Id. at ECF No. 2).
 
e. AT&T complied with the warrant and provided the information. (Id. at ECF No. 5; Gov. Hr’g Ex. 14).
 
f. At the suppression hearing held on September 26, 2016, defendant Taylor withdrew his motion to suppress the evidence acquired by the execution of this warrant. (ECF No. 145, Tr. of Hr’g held on Sept. 26, 2016, at 3-5).
 
July 24, 2015 search of 1513 Ogden Ave.
12. a. On July 24, 2015 Agent Thayer applied for a federal search warrant for the residence at 1513 Ogden Ave. See Case No. 4:15 MJ 6207.
 
b. In support of his application, Special Agent Thayer submitted his sworn, written affidavit. In the affidavit, he described his law enforcement training and experience. He stated that he and other law enforcement agents were investigating Dwane Taylor for firearm and drug-related criminal law violations. The affidavit described 1513 Ogden as Taylor’s residence. The investigation included the gunshot killings of Erin Davis on December 16, 2014, and of Juanita Davis on January 16, 2015. Law enforcement analysis indicated that the same firearm was used to kill both women. The affidavit stated that law enforcement received information from at least two confidential sources, who had testified before the federal grand jury, that Taylor shot and killed each of the women in retaliation for Juanita Davis taking a vehicle and narcotics from him in 2014. In June and July 2015 law enforcement received detailed information that Taylor admitted shooting both women and that, when shooting Juanita Davis, his firearm jammed; nevertheless, he kept the firearm and, on July 14, 2015 he used it to kill one Tadaro E. Taylor. Law enforcement confirmed that Tadaro E. Taylor was killed on July 14, 2015, by a gunshot to the chest. The affidavit stated that on July 16, 2015 the federal grand jury returned an indictment of Dwane Taylor for the drug-related killings of the Davis women. In their efforts to locate Taylor, law enforcement tracked Taylor to 1513 Ogden on July 22, 2015.
 
c. The affidavit further stated that on the morning of July 24, 2015, officers arrested Taylor as he exited 1513 Ogden. At the time of his arrest, Taylor possessed $1,000.00 in cash plus a bottle of Dormin, a substance commonly used to dilute heroin for distribution. The affidavit also stated that, based upon the affiant’s education, training, and experience in law enforcement, persons keep the same firearms for years, and, if the firearm has been used to commit a crime, it is kept in a secure location, such as a residence, a storage facility, or a vehicle to prevent it from being detected. See id., ECF No. 1 at 4-5, quoted below at pp. 25-26.
 
d. Based on the information set forth in the affidavit, on July 24, 2015 at 11:00 a.m., Judge Mummert issued a warrant to search 1513 Ogden for firearms, documents indicating ownership of firearms, documents that indicate residency, and indicia of control over firearms. (Id. at ECF No. 2; Gov. Hr’g Ex. 15).
 
*7 e. The warrant was executed and 1315 Ogden was searched on July 24, 2015 and items were seized from it. Among the items seized were two digital scales and an empty Glock firearm box. (Id. at ECF No. 5 at 5).
 
July 24, 2015 search of Bracket Master storage trailer
13. On July 24, 2015 with a federal search warrant law enforcement searched a 2002 Bracket Master storage trailer. See Case No. 4:15 MJ 6208, ECF No. 2; Gov. Hr’g Ex. 11. However, in the execution of the search warrant, nothing of evidentiary value was seized. (Id. at ECF No. 5 at 2).
 
July 24, 2015 search of Monte Carlo automobile
14. On July 24, 2015, Special Agent Wynn applied for a federal search warrant to search a specifically identified Monte Carlo automobile. See Case No. 4:15 MJ 6212. The warrant was issued by Judge Mummert on that day. Id. at ECF No. 1; Gov. Hr’g Ex. 10). The government has indicated that nothing seized from this vehicle, other than photographs of the vehicle, will be offered into evidence against defendant Taylor. (See ECF No. 112 at 1).
 
July 28, 2015 search of 2007 Chevrolet Impala
15. On July 28, 2015, Special Agent Wynn applied for a federal search warrant to search a specifically identified four-door 2007 Chevrolet Impala automobile. See Case No. 4:15 MJ 7222. However, nothing of evidentiary value was seized from the vehicle.
 
August 2015 seizure of letters written by defendant in jail
16. a. Following his arrest, Dwane Taylor was detained in the custody of the United States Marshals Service in the Ste. Genevieve County, Missouri Jail from July 2015 to July 2016. Federal agents continued their investigation of Taylor. They learned that Joe Edger was a witness to Taylor’s criminal activity and developed a concern that Taylor would attempt to have Edger contacted for the purpose of influencing Edger’s testimony.
 
b. The Ste. Genevieve County Jail has written regulations regarding inmate mail. While Dwane Taylor was incarcerated there, these regulations provided that, until the outgoing inmate mail is placed in the United States Postal Service (USPS) receptacle, for the purposes of confidentiality of inmates’ letters’ communicative content, the Jail considers inmates’ non-legal, non-privileged outgoing mail to be the property of the Jail and not the inmates. Jail personnel know of no law that prohibits Jail staff from inspecting and reading outgoing inmates’ non-legal, non-privileged mail until the mail is placed in the USPS receptacle.
 
c. At this Jail, after an inmate writes a letter and wants it mailed, the inmate has several options. He or she can give it (sealed in an envelope) to a corrections officer for mailing, or the inmate can place it through a slot in the inmate’s own cell door, through a slot in a cell block door, or through a slot located on a certain jail wall. None of these places are USPS receptacles.
 
d. After a letter is deposited by an inmate through one of these slots, Jail staff members are responsible for collecting it and taking it either to the Control Room (also known as the “8700” Room) or to the Corporal’s office. At these locations, the letter is logged by Jail staff. Normally, after the letter is logged in, it is placed in the USPS receptacle for pick-up by the USPS personnel. When placed in the USPS receptacle, the Jail no longer considers it to be Jail property, subject to inspection and being read.
 
*8 e. The Jail’s inmate mail-handling policy is published in the inmate handbook to which all Jail inmates have access. Regarding inmate mail, Section 3.14 of the handbook provides in relevant part:
3.14 MAIL
A. There are no restrictions on the amount of mail sent, received or the number of correspondents. Mail will be collected & delivered by the night shift; last mail pick-up is 0200 hrs.
B. All inmate correspondence is considered property of this facility until it is placed in a USPS mail receptacle & after it is delivered to the facility by the USPS. As such, all incoming & outgoing mail is subject to being searched for contraband, except as may be otherwise noted. Both incoming & outgoing mail may be read when reasonable suspicion exists that information pertinent to facility safety &/or security concerns or information about crimes is being communicated. All incoming mail is reviewed for contraband & attempts at inmate to inmate correspondence.
(Gov. Hr’g Ex. 16, Detention Center Operational Procedures & Policy, 5-6). Due to the Jail’s limited staff time and resources, the Jail does not inspect all inmate outgoing mail, only when a Jail staff member has a reasonable suspicion to do so. When an investigating law enforcement agency requests that an inmate’s mail be intercepted and reviewed, the Jail considers such a request to establish a reasonable suspicion of criminal activity for the interception of such mail. Then a copy of such mail is made. The copy is sent by Jail personnel to the Assistant Jail Administrator for forwarding to the requesting law enforcement agency. The original of the mail is sealed with scotch tape and put in the USPS receptacle for mail delivery.
 
f. Because the federal agents had reason to believe Dwane Taylor would endeavor to have Joe Edger contacted in an effort to influence Edger’s testimony, the United States Attorney’s office requested the Ste. Genevieve County Jail to review and copy Taylor’s mail. The federal agents’ concern was based in part upon the conversation Taylor had with his sister who visited him at the Jail. Jail personnel agreed to provide copies of Taylor’s letters to the agents.
 
g. In August 2015, Jail authorities opened, read, and copied two letters Dwane Taylor wrote and placed in the inmate mail. One letters was addressed to Kassandra Robinson and the other to Renee Horton, who were not incarcerated. Jail personnel had their own suspicion of the letter to Renee Horton, because the envelope he used for the letter was addressed only to “Renee” without including her last name and the envelope did not include Taylor’s inmate number in the return address. Copies of these letters and their envelopes were given to Special Agent Wynn. (Gov. Hr’g Exs. 7, 8).
 
September 2015 examination of Samsung mobile device
17. In September 2015, authorities examined the Samsung mobile device with serial number SGH-1747. This phone belonged to Kassandra Robinson.
 
October 2015 seizure of 9 mm. firearm items
18. On October 16 and 28, 2015, law enforcement authorities seized and searched a carrying case, a 9 mm. ammunition magazine, and firearm purchase documents. They had been obtained from the owner of the items, someone other than Dwane Taylor.
 
*9 At the suppression hearing held on September 26, 2016, defendant Taylor through defense counsel withdrew his motion to suppress this evidence. (ECF No. 145, Tr. of Hr’g held on Sept. 26, 2016, at 6).
 
DISCUSSION
Among his arguments for suppression, defendant Taylor argues that the government’s acquisition of evidence violated the Fourth[4] and Fifth Amendments to the Constitution. Indeed, the exclusionary rule applies to violations of these constitutional provisions. Weeks v. United States, 232 U.S. 383, 398 (1914) (regarding the Fourth Amendment); Bram v. United States, 168 U.S. 532, 548, 565 (1897) (regarding the Fifth Amendment).
 
However, before defendant may seek the suppression of evidence, he must demonstrate that he has standing to do so. Defendant’s standing includes the fact that his own constitutional rights were violated, not someone else’s, and that he had a legitimate expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 140, 143 (1978); United States v. Salvucci, 448 U.S. 83, 91-92 (1980).
 
March 12, 2015 search of Motorola cell phone[5]
Defendant argues that law enforcement unlawfully searched a specific Motorola cell phone without a warrant or anyone’s consent. (ECF No. 88 at 1).
 
As stated, defendant must establish that his constitutional rights were violated. “Fourth Amendment rights are personal and may not be vicariously asserted. With respect to cellphones, an accused must first establish that he personally has a legitimate expectation of privacy in the object that was searched.” United States v. Turner, 781 F.3d 374, 382 (8th Cir. 2015) (citations of quotations omitted).
 
In his motion, he admits that the Motorola cell phone belonged to murder victim Juanita Davis, not to him. (ECF No. 88 at 1). Defendant has not shown that he, as opposed to the decedent, had any reasonable expectation of privacy in the cell phone when law enforcement obtained the data from the phone. Thus, he has not demonstrated that he has standing to seek suppression of the evidence acquired by the government in the search of the phone.
 
Recognizing his lack of standing, at the suppression hearing held on September 26, 2016 defendant Taylor through defense counsel withdrew his motion to suppress any evidence obtained through the search of the Motorola cell phone. (ECF No. 145, Tr. of Hr’g held on Sept. 26, 2016, at 5).
 
Therefore, the motion to suppress should be denied as moot as to this evidence.
 
June 2015 search of Samsung cell phone[6]
In his motion to suppress, defendant argues that the seizure and examination of his Samsung cell phone on June 10, 2015, was illegal, because the police acted without a warrant or his consent. (ECF No. 88 at 1-2). Defendant has standing to seek the suppression of the data obtained from his Samsung cell phone, because the evidence clearly establishes that he owned it. (Finding of Fact No. 5). However, the prohibition against warrantless searches and seizures does not apply where voluntary consent has been given. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).
 
*10 For a subject’s consent to be constitutionally effective, the court must consider whether it was voluntary, that is, whether it was the product of a free choice and not given under duress or coercion. United States v. Willie, 462 F.3d 892, 896 (8th Cir. 2006). The relevant factors are to be garnered from the totality of the circumstances and include whether, as applied to this case, defendant was in custody or not when he consented, whether he had been threatened or intimidated by the police, whether his consent was induced by any promise, whether defendant objected to the search, his age and general intelligence, whether he was intoxicated, whether he had been advised of his right not to consent, and whether, due to prior criminal law procedural experience, he was aware of the rights of suspects in the criminal justice system. Id.
 
From the facts established in the hearing, when Det. Akinyemi investigated the killing of Terry Tobey, on June 8, 2015 he visited the former wife of the decedent’s son, Leann Lomere. Coincidentally there also was defendant Taylor, a friend of Ms. Lomere. When the officer returned to her residence on June 9, there again was defendant. Det. Akinyemi briefly interviewed defendant.
 
During this period of time, defendant Taylor was in his late 30’s in age. He appeared to be of normal intelligence, without any indication of mental illness or defect. He gave no indication he was then intoxicated. He had had prior experience with the criminal justice system and was then on state parole. Det. Akinyemi believed defendant understood that he was not required to consent to the analysis or to leave his cell phone with the police lab. No promises or coercion were used to get Taylor to cooperate with the police investigation. Rather, he intended to cooperate because he wanted the police to clear him as a suspect in the Terry Tobey killing investigation.
 
At no time during the period June 8 to 11, 2015, when the police lab finished its analysis of defendant’s cell phone, was he taken into custody, or threatened, or coerced in any way.
 
Defendant argues his consent was involuntary, because Det. Akinyemi directed him to bring his cell phone to a specific location on June 10, 2015; when he arrived with the phone, defendant refused to sign a written consent to search form; the detective never told him he had the right to refuse to consent; defendant initially stated the police could search his phone if he got it back that day; the police later told defendant he could not get it back that day but had to wait until the next day; and the police violated defendant’s condition of returning the phone the next day by not returning it to him until June 17, 2015. (ECF No. 141 at 2-3).
 
Defendant’s factual arguments are without merit. First, throughout the June 8 to 17, 2015 period, defendant was cooperative and interested in the police getting information that cleared him of the Terry Tobey killing. On June 9, Det. Akinyemi was not coercive when he asked defendant if he could view his cell phone. Defendant knew he did not have to consent and stated this to the detective. Nevertheless, on June 9 defendant said the officer could examine the phone on the condition that he examine the cell phone only in defendant’s presence. The detective agreed, but the officer could not perform the examination because his laptop computer did not have the correct software. In compliance with defendant’s condition, the detective gave the phone back to defendant. (Finding of Fact No. 5c).
 
On June 10, after having been given the officer’s contact card the day before, defendant phoned Det. Akinyemi; the officer did not initiate the contact with defendant. Defendant stated he still felt he was being investigated for the Tobey murder. Det. Akinyemi said he would look into it. When he called defendant back on June 10, he told him that the contrary was true. On the phone the detective asked if the police could still analyze defendant’s phone. Knowing that he did not have to do this, defendant agreed and agreed also to meet the officer at the police lab.
 
*11 No hearing evidence indicated in any way that defendant’s will was overborne or that he was being coerced into providing his phone for analysis. Defendant drove himself to the lab and gave the phone to the detective. Again, knowing he did not have to consent, he refused to sign a written consent form, but orally agreed the police could examine his phone.
 
When the analysis could not be concluded on June 10, defendant agreed the police could have the phone overnight on two conditions: that the officer retrieve his SIM card and that the phone be returned to him as soon as possible. The SIM card was then retrieved and given to defendant and the detective agreed that the phone would be returned as soon as possible.
 
On June 11, the cell phone analysis was completed. To comply with defendant’s other condition, Det. Akinyemi tried without success to reach defendant by phone. When he could not reach defendant by phone, Det. Akinyemi took defendant’s cell phone to the Sunset Hills Police Department where the Tobey murder investigation originated. There the phone was returned to defendant on June 17, 2015. The effort to reach defendant on June 11 sufficiently satisfied defendant’s condition that the phone be returned to him. The record does not indicate why it took defendant until June 17 to go to the police department to get his phone and the record does not indicate that defendant was in any way prejudiced by his not getting the phone back before June 17.
 
As stated, the evidence of record and the Findings of Fact, above, do not support defendant’s arguments that his consent for the police analysis of his phone was not voluntary. Defendant’s consent to the police analyzing his cell phone was voluntary.
 
The motion to suppress should be denied as to the data retrieved from defendant’s Samsung cell phone.
 
June 17, 2015 statement of defendant to Sunset Hills Police Dept.[7]
When he retrieved the Samsung cell phone from a Sunset Hills police officer on June 17, 2015, defendant spoke with the officer. This conversation was recorded. Defendant argued initially that these statements should be suppressed, because the earlier seizure of his cell phone was without his consent, and on June 17 his statements were involuntary because the police told him that the phone would not be returned to him unless he submitted to an interview. Because he needed his phone, he argues his consent was not voluntary. (ECF No. 89 at 1).
 
At the September 26, 2016 hearing, government counsel stated it would not offer into evidence in its case-in-chief at trial these statements by defendant Taylor. (ECF No. 145, Tr. of September 26, 2016 hearing, at 7). For this reason, the defendant’s motion to suppress these statements is moot.
 
Even if the motion to suppress were not moot as to this evidence, it should be denied. The admissibility of post-arrest statements of a defendant which resulted from police interrogation depends upon whether the defendant had been advised of his rights, as prescribed by Miranda v. Arizona, 384 U.S. 436 (1966); whether the defendant knowingly and voluntarily waived the Miranda rights, North Carolina v. Butler, 441 U.S. 369, 373, 375-76 (1979); and whether the statements were voluntary.
 
In this case, there was no requirement that the Sunset police officer advise defendant of his Miranda rights, because he was not then in custody. Miranda v. Arizona, 384 U.S. at 477-78. He had voluntarily given his cell phone to the police for examination. Because the Major Case Squad investigation had ended, the phone was given to the Sunset Hills Police Department to return to defendant. Without any coercion, defendant went to that police station to get his phone. While there, he spoke with the officer. No evidence indicated in the least that any act of defendant, including his conversing with the officer was in any way coerced.
 
*12 Nevertheless, if the government were to use this statement in its case-in-chief at trial, the statement still needs to have been voluntary. That is, his statement must not have been the result of police overreaching, such as coercion, deception, or intimidation, regardless of the mental condition of the defendant. Colorado v. Connelly, 479 U.S. 157, 169-70 (1986); Moran v. Burbine, 475 U.S. 412, 421 (1986); United State v. Jordan, 150 F.3d 895, 898 (8th Cir. 1998), cert. denied, 119 S. Ct. 1153 (1999); United States v. Goudreau, 854 F.2d 1097, 1099 (8th Cir. 1988).
 
Nothing in the record indicates that defendant’s statements were anything but voluntary. The motion to suppress this statement should be denied.
 
June 17, 2015 collection of DNA; photos of defendant’s vehicle[8]
On June 17, 2015, law enforcement officers collected a DNA sample from defendant and took photos of a motor vehicle. As stated above, defendant signed a consent form for this DNA collection. (Gov. Hr’g Ex 5).
 
At the September 26, 2016 hearing, counsel for the government stated that the DNA sample was not scientifically analyzed and had been destroyed. (ECF No. 112 at 11). Therefore, the motion to suppress is moot as to the DNA sample.
 
Regarding the photos of defendant’s automobile that was parked on a lot in public view, see Gov. Hr’g Ex. 6, also at the September 26, 2016 hearing, counsel for defendant withdrew the photos of the vehicle from the motion to suppress. (ECF No. 145 at 12, lines 12-17).
 
Therefore, the motion to suppress is moot as to the DNA sample and as to the photographs of defendant’s vehicle.
 
July 2015 cell site location information[9]
By separate motion, defendant seeks the suppression of evidence derived from the operation of a cell site simulator between July 20 and 24, 2015 to locate him for arrest following the filing of the original indictment. (ECF No. 117). He argues the operation of the cell site simulator was done without a proper warrant, because the government’s application for the warrant (1) failed to inform the court of the nature of the cell site simulator and how it operates, so that measures could be taken to be sure the search would not be overly intrusive; (2) failed to describe with particularity what information was to be acquired by the operation of the simulator; and (3) authorized the acquisition of information from a person unrelated to the investigation and the finding of probable cause. (Id. at 2).
 
Regarding defendant’s first and second arguments, the government’s application and the agent’s affidavit described how the cell site simulator operated. In the general geographical area indicated by the telecommunications provider’s information, the cell site simulator would sense the electronic impulses emitted by the target cell phone as though the cell phone was responding to a regular cell tower. (See Finding of Fact No. 9d). Through the strength of these impulses, the operator of the cell site simulator could determine the relative location of the target cell phone.
 
Any argument that the cell site simulator illegally sent electronic signals that intruded into 1513 Ogden to which the cell phone responded (see Findings of Fact Nos. 9e and 9i) is without merit. This is because the earlier-issued arrest warrant for defendant authorized the government to enter his residence, reasonably believed to be 1513 Ogden, to locate and arrest him. United States v. Glover, 746 F.3d 369, 373 (8th Cir. 2014).
 
*13 In answer to defendant’s third argument, the record establishes that the application and the affidavit contained sufficient information to persuade the issuing judge that the operation of the cell site simulator would not obtain the contents of any communication (Finding of Fact No. 9e), and that any information unrelated to the investigation would be deleted. (Id.).
 
To the extent that any information relating to anyone other than Dwane Taylor was acquired by the operation of the cell site simulator, Taylor has no standing to complain. Constitutional and other rights are personal and cannot be vicariously enforced. United States v. Turner, 781 F.3d 374, 382 (8th Cir. 2015).
 
In any event, defendant Taylor was not prejudiced by the operation of the cell site simulator. The evidence of which he complains, i.e., information of his whereabouts for the purpose of his arrest, had already been learned by Special Agent Wynn, who had seen Taylor outside 1513 Ogden before the cell site simulator was used. (See Finding of Fact No. 9h).
 
July 24, 2015 arrest of defendant; seizure of items from his person[10]
Defendant argues that his July 24, 2015 arrest was unlawful and the items seized from his person following his arrest should be suppressed. (ECF No. 141 at 5). This is because the operation of the cell site simulator to acquire data about his location exceeded the scope of the authority granted by the warrant. (Id. at 5-6).
 
As stated above, the operation of the cell site simulator was not unlawful and violated no right of defendant, constitutional or statutory. Defendant was lawfully arrested pursuant to the arrest warrant issued by the Clerk of this court upon the filing of the original indictment in this case. (Findings of Fact Nos. 9-10).
 
The warrantless seizure of physical items from Taylor’s person incident to his lawful arrest, was reasonable under the Fourth Amendment. United States v. Robinson, 414 U.S. 218, 235 (1973) (“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.”)
 
For these reasons, the motion to suppress any evidence resulting from defendant’s arrest on July 24, 2015, including any items seized from his person incident to his arrest, should be denied.
 
July 24, 2015 warrant for AT&T data for phone number xxx-xxx-2826[11]
At the suppression hearing held on September 26, 2016 defendant through defense counsel withdrew his motion to suppress any evidence obtained through the execution of the warrant issued to AT&T for this search of the Motorola cell phone. (ECF No. 88 at 4, No. 7; ECF No. 145, Tr. of Hr’g held on Sept. 26, 2016 at 4).
 
July 24, 2015 search of 1513 Ogden Ave.[12]
Defendant argues that any items seized from 1513 Ogden Ave. on July 24, 2015, during the execution of the federal search warrant should be suppressed. (ECF No. 141 at 9). Specifically, he argues that the affidavit submitted by Special Agent Thayer contained illegally obtained information, i.e., defendant’s location and arrest outside 1513 Ogden Ave. He argues that his relationship to 1513 Ogden was obtained from the illegal operation of the cell site simulator, discussed above.
 
Under the Fourth Amendment the search warrant for 1513 Ogden was lawfully issued, if the issuing magistrate judge had a substantial basis for concluding that probable cause existed for the issuance of the warrant. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); United States v. Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016).
 
*14 The legal sufficiency of the information in Agent Thayer’s affidavit about the government’s evidence and investigation of defendant for the drug-related killings is not disputed by defendant. And upon consideration by this reviewing judge, this evidence was a substantial basis for the issuing judge to believe that defendant had committed those crimes. To defendant’s point, the legal sufficiency of the issuing judge’s finding of probable cause had also to include consideration of whether evidence of this criminal activity would be found in 1513 Ogden, as set forth in the scope of the subject search warrant.
 
The scope of the warrant was stated as follows:
contraband or other items which constitute the fruits or evidence of unlawful activity, to wit: firearms, paperwork evidencing the purchase of or ownership of firearms, documentation of residency and/or ownership, and other indicia of control over the item or location; and evidence related to the use of a firearm in furtherance of drug trafficking.
Case No. 4:15 MJ 6207, ECF No. 2, Search and Seizure Warrant. In fact such items were found and seized in the execution of the warrant. (Id. at ECF No. 5 at 5).
 
The cardinal issue, then, is whether the probable cause affidavit contained a substantial basis for finding probable cause to believe the seized items would be located in 1513 Ogden. A review of the affidavit indicates that the investigating agents did not have any information about 1513 Ogden Ave. before defendant was seen exiting it. About 1513 Ogden Ave., the affidavit stated:
Since that time [the issuance of the federal arrest warrant for Taylor], law enforcement officials have employed investigative techniques to determine TAYLOR’s whereabouts. On or about July 22, 2015, officers tracked TAYLOR to the residence located at 1513 Ogden Ave., Saint Louis, Missouri 63133. In-person and 24-hour video camera surveillance since that date has identified TAYLOR’s presence and dominion and control over that residence. During that time period, TAYLOR has been the only individual observed coming to and from the residence.
* * *
 
On the morning of July 24, 2015, TAYLOR exited the target residence and approached the target vehicle. As he did, law enforcement officers arrested TAYLOR pursuant to the federal arrest warrant.
Id. at ECF No. 1, Application for a Search Warrant at 4. This location relationship of defendant to the residence was supplemented by further information in the affidavit. This supplemental information was Agent Thayer’s expert law enforcement opinions regarding the location of defendant’s firearms inside 1513 Ogden Ave.:
Based on my education, training, and experience investigating firearms laws, as well as from what other ATF Special Agents have told me, I know that firearms are not always fluid commodities. That is, if a person has a firearm, they are likely to have the firearm for years. Likewise, when a firearm has been used in the commission of a crime, an individual is more likely to maintain possession of that firearm in a secure location to prevent detection of a connection to the crime and, in doing so, maintains possession in a place such as a residence, a secured storage facility, or vehicle where the individual has the greatest ability to exercise his dominion and control over the property and, by extension, the firearm itself.
Based upon the information recently received from the confidential source(s), it is firmly believed that a firearm is located within the target residence, target trailer, or target vehicle. Furthermore, it is my firm belief that paperwork evidencing the purchase of or ownership of firearms, documentation of residency and/or ownership, other indicia of control over the premises, and/or evidence of possession of a firearm in furtherance of drug trafficking is being stored in the target residence, the target trailer, and the target vehicle.
*15 Id. at 4-5. The undersigned is satisfied that these quoted paragraphs establish that the information set forth in the affidavit about defendant and the information about his relationship to 1513 Ogden Ave. provided a substantial basis for the issuing judge’s finding of probable cause to believe that the evidence of criminal activity and contraband described in the warrant would be found in this residence. United States v. Seidel, 677 F.3d 334, 338-39 (8th Cir. 2012) (ruling that evidence that included officer’s conclusion that paper clips are commonly used to clean marijuana pipes was sufficient to establish probable cause).
 
Because the undersigned has also determined that the operation of the cell site simulator to locate defendant’s cell phone inside 1513 Ogden was lawful, the motion to suppress the evidence seized in the execution of the search warrant for this residence should be denied.
 
July 24, 2015, search of Bracket Master storage trailer[13]
On July 24, 2015, the Bracket Master storage trailer on the property of 1513 Ogden was searched pursuant to a federal search warrant. However, the government has stated that nothing of evidentiary value was seized from it. (ECF No. 112 at 12).
 
Therefore, the motion to suppress should be denied as moot as to this search.
 
July 24, 2015 search of Monte Carlo automobile[14]
Defendant has moved to suppress evidence related to the July 24, 2015 execution of a search warrant for defendant’s Monte Carlo automobile. (ECF No. 88 at 2). The government has indicated that nothing seized from this vehicle, other than photographs of the vehicle, will be offered into evidence against defendant Taylor. (See ECF No. 112 at 1).
 
At the suppression hearing held on September 26, 2016, defendant Taylor through defense counsel withdrew his motion to suppress any evidence obtained through the execution of the warrant issued for this vehicle. (ECF No. 145, Tr. of Hr’g held on Sept. 26, 2016, at 10).
 
July 28, 2015 search of 2007 Chevrolet Impala[15]
Defendant has moved to suppress any evidence derived from the July 28, 2015 search of defendant’s 2007 Chevrolet Impala automobile. See Case No. 4:15 MJ 7222. However, the government has stated that nothing of evidentiary value was seized from the vehicle. (ECF No. 112 at 12).
 
At the suppression hearing held on September 26, 2016, defendant Taylor through defense counsel withdrew his motion to suppress any evidence obtained through the execution of the warrant issued for this vehicle. (ECF No. 145, Tr. of Hr’g held on Sept. 26, 2016, at 10).
 
Therefore, the motion to suppress should be denied as moot as to this vehicle.
 
August 2015 seizure of two letters written by defendant[16]
Defendant has moved to suppress any evidence derived from the August 2015 seizure of his two letters by Ste. Genevieve County Jail personnel. (ECF No. 88 at 5). In Stroud v. United States, the Supreme Court held that prison officials may seize voluntarily-written inmate letters that come into their possession without coercion and “under established practice, reasonably designed to promote the discipline of the institution.” Stroud v. United States, 251 U.S. 15, 21 (1919). The Eighth Circuit has applied this precedent to permit prison officials to read inmates’ incoming and outgoing nonprivileged mail for security reasons. Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024, 1026 (8th Cir. 2004); Thongvanh v. Thalacker, 17 F.3d 256, 258-59 (8th Cir. 1994); United States v. Kelton, 791 F.2d 101, 103 (8th Cir. 1986); but see Wolff v. McDonnell, 418 U.S. 539, 574 (1974) (holding that inmates’ legal mail is privileged and may only be opened and inspected in the inmate’s presence).
 
*16 In United States v. Kelton, the Eighth Circuit held that a prisoner’s Fourth Amendment rights were not violated when prison officials inspected and copied his outgoing mail before mailing it. 791 F.2d 101, 102–03 (8th Cir. 1986); see also Smith v. Delo, 995 F.2d 827, 830 (8th Cir. 1993) (prison officials are justified in screening outgoing mail for escape plans, contraband, threats, or evidence of illegal activity). The prison officials in Kelton were permitted by regulation to read and copy outgoing mail. The regulations authorized jail personnel to copy and refer any material containing threats or extortions to the appropriate law enforcement agency. Id. The regulations also forbade inmates from sealing outgoing letters unless the letters belonged to a special category. Kelton, 791 F.2d at 102–3 (citing 28 C.F.R. §§ 540.11, 540.13). The Eighth Circuit held that these regulations all served the legitimate interest of prison order. Id.
 
Defendant Taylor argues that the warrantless seizure of his outgoing mail did not serve any government interest in the order and security of the Ste. Genevieve County Jail. (ECF No. 88 at 5). Although the Ste. Genevieve County Jail permits inmates to seal nonlegal outgoing mail, unlike in Kelton, its regulations were otherwise similar to those the Eighth Circuit approved in Kelton. Like Kelton, the Ste. Genevieve County Jail’s regulations specifically state that its officials may inspect and read nonprivileged inmate correspondence where they believe the correspondence may contain information concerning criminal activities. (Gov. Hr’g Ex. 16, Detention Center Operational Procedures & Policy, 5-6).
 
The Ste. Genevieve County Jail officials had reason to believe defendant’s outgoing mail could contain information about criminal activity because of the request made by law enforcement for his mail. The federal agents had reason to believe Dwane Taylor would endeavor to have Joe Edger contacted in an effort to influence Edger’s testimony. The Jail officials acted reasonably pursuant to the Jail handbook in seizing and inspecting defendant’s outgoing mail.
 
Furthermore, and more fundamentally, the government responds that defendant had no expectation of privacy in the two letters he mailed while detained. (ECF No. 112 at 34-40). As noted above, to be entitled to Fourth Amendment protection, a person must have an actual expectation of privacy. See Smith v. Maryland, 442 U.S. 735, 740 (1979). Given the realities of institutional confinement, any reasonable expectation of privacy an inmate retains is necessarily diminished. Bell v. Wolfish, 441 U.S. 520, 557 (1979). Although inmates do not forfeit all constitutional protections by reason of their confinement, Wolff, 418 U.S. at 555-56, the threshold determination is whether a prisoner’s expectation is legitimate or reasonable.
 
Defendant received a copy of or otherwise had access to the inmate handbook informing inmates of the mail inspection policy. (ECF No. 112 at 37). When an inmate is notified of institutional policies that might subject his nonlegal mail to official scrutiny, the inmate’s constitutional rights are not violated by the subsequent examination of such mail, because he has no reasonable or legitimate expectation of privacy in it.
 
Suppression of these letters is not warranted.
 
September 2015 examination of Samsung mobile device[17]
Defendant moved to suppress the results of an examination of the Samsung cell phone with serial number SGH-1747. (ECF No. 88 at 5). This phone belonged to Kassandra Robinson, and not to defendant. Recognizing this, at the suppression hearing held on September 26, 2016, defendant Taylor through defense counsel withdrew his motion to suppress any evidence obtained through the search of this cell phone. (ECF No. 145, Tr. of Hr’g held on Sept. 26, 2016, at 6).
 
October 2015 seizure of 9 mm. firearm items[18]
*17 Defendant moved to suppress evidence derived from the seizure and search of a carrying case in October 2015. This evidence included a 9 mm. ammunition magazine and related firearms purchase documents. (ECF No. 88 at 5).
 
At the suppression hearing held on September 26, 2016, defendant Taylor through defense counsel withdrew his motion to suppress this evidence, because his investigation indicated that it was obtained voluntarily from the owner of the items. (ECF No. 145, Tr. of Hr’g held on Sept. 26, 2016, at 6).
 
ORDER AND RECOMMENDATION
For the reasons set forth above,
 
IT IS HEREBY ORDERED that the motion of the United States for a determination by the court of the admissibility of any arguably suppressible evidence (Doc. 14 oral) is denied as mooted by the proceedings described above.
 
IT IS HEREBY RECOMMENDED that the motions of defendant Dwane Taylor to suppress evidence (ECF Nos. 13 oral, 88, 89, 117) be denied.
 
The parties have 21 days to file written objections to this Order and Recommendation. The failure to file timely written objections may waive the right to appeal issues of fact.
 
Signed and filed on February 24, 2017.
 
Footnotes
A SIM (Subscriber Identification Module) card is a device that allows the cell phone to communicate with cellular networks. Dwane Taylor told Det. Akinyemi that he wanted to use this SIM card in another phone so he could use the numbers on it to make calls.
In this conversation, Gov. Hr’g Ex. 1, Taylor declined to sign an Advice of Rights form. (Gov. Hr’g Ex. 2). At the September 26, 2016, hearing, government counsel stated the government would not offer into evidence in its case-in-chief at trial defendant Taylor’s June 17, 2015 statements. For this reason, defendant’s motion to suppress these statements is moot. (ECF No. 145, Tr. of September 26, 2016, hearing, at 7).
On June 17, 2015, Taylor signed a Consent to Search/Consent for DNA Collection. (Gov. Ex 5). At the September 26, 2016 hearing, counsel for the government stated that the DNA sample was not scientifically analyzed and has been destroyed.
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV.
See Findings of Fact Nos. 3-4.
See Finding of Fact No. 5.
See Finding of Fact No. 6.
See Finding of Fact No. 7.
See Finding of Fact No. 9.
See Finding of Fact No. 10.
See Finding of Fact No. 11.
See Finding of Fact No. 12.
See Finding of Fact No. 13.
See Finding of Fact No. 14.
See Finding of Fact No. 15.
See Finding of Fact No. 16.
See Finding of Fact No. 17.
See Finding of Fact No. 18.