*1 Defendant Edmund Brixen has been charged in a five-count indictment with transporting a minor across state lines with intent to engage in criminal sexual activity, sexual exploitation of a child and possession of child pornography. Dkt. 1. Before the court is Brixen’s motion to suppress evidence obtained and derived from his cell phone during his preliminary interaction with the police in a grocery store parking lot. Dkt. 17. Specifically, Brixen argues that a police detective conducted an unreasonable search of Brixen’s cell phone when the detective used his own cell phone to send a Snapchat message to the cell phone of the investigation’s unidentified target, then waited to see if the Snapchat notification appeared on the home screen of Brixen’s cell phone (which police already had seized from Brixen after arresting him).

I am recommending that the court deny the motion. The detective’s action did not constitute a “search.” Even assuming, arguendo, that it was a search, it revealed no evidence or information that affected the validity of the subsequently-issued search warrant for the contents of Brixen’s phone.

The court held an evidentiary hearing on October 30, 2017. From the evidence adduced at the hearing, as well as the unchallenged incident reports and search warrant application, I find these facts:

FACTS

On May 24, 2017, City of Altoona Police Detective Jeff Baumgarten was trolling on a smartphone application called Whisper, posing as a 14-year-old girl, with the user name “Bored_4_teen_f”. Baumgarten’s teenaged persona made contact with another user, “Death_Island.” Over a series of communications on Whisper, the teenager and “Death_Island” made plans to meet and go shopping for “underwear and bras.” “Death Island” provided the teenager with his phone number, two photos of himself and his Snapchat name, “Snappyschrader.”

Baumgarten, in panes puellae, continued to communicate on Snapchat with “Snappyschrader” and agreed to meet him at the local Woodman’s supermarket on June 1. Snappyschrader reported that he would be driving a black car and that they could meet at the front of the store. Shortly before 1:00 p.m., Snappyschrader sent a message that he was on his way. When he arrived, he was met by Baumgarten and two other officers, who placed him under arrest. Snappyschrader was the defendant, Edmund Brixen.

The officers searched Brixen’s person incident to arrest and retrieved his cell phone and other items. Brixen’s cell phone already was powered on when the police seized it. Baumgarten read Brixen the Miranda warnings off of a Miranda Warnings card; Brixen responded that he understood the warnings and he agreed to talk.

Baumgarten asked Brixen why he was there; Brixen replied that he was there to get food for work. Brixen denied that he was there to meet anyone. To show Brixen that the jig was up, Baumgarten used the cell phone that he had been using to communicate with “Snappyschrader” to send “Snappyschrader” a Snapchat message. As he did this, Baumgarten held Brixen’s already-seized cell phone in front of Brixen. A notification appeared on Brixen’s phone reporting that he had received a message via Snapchat from “Bored_4_teen_f”. Baumgarten did not “open” Brixen’s phone, he did not select any apps, he did not review any contents of the phone other than the home screen, on which the Snapchat notification appeared. Baumgarten does not recall if the phone made a tone, vibrated or did nothing at all when the notification appeared on the home screen.

*2 After seeing the notification on his phone, Brixen admitted that he was at Woodman’s to meet a fourteen-year-old girl and that he was going to take her shopping at the mall for “undergarments.” Brixen said he was going to give the girl some advice, although he did not know what kind of advice she needed and she had never asked for his advice. Detective Baumgarten asked Brixen whether there were pictures of underage girls or boys on his phone; Brixen said no. Br. in Opp., dkt. 25-1.

Baumgarten told Brixen that, because Brixen had been talking with a person who Brixen believed was a fourteen-year-old female, had intended to take her to the mall, had asked to look at her in her bra and underwear, and had asked her for pictures, Baumgarten believed that there were going to be images of nude underage girls in Brixen’s phone. Baumgarten asked Brixen for consent to search his phone. According to the warrant application, Brixen “had a difficult time deciding, but eventually denied consent.” Baumgarten told Brixen he was going to retain Brixen’s cell phone and seek a search warrant for its contents.

Brixen was released from custody. The next day, June 2, 2017, he sent a message via Facebook Messenger asking to meet with Baumgarten to work something out. On June 5, Brixen sent another message asking Baumgarten about his phone and whether they could “factory reset it.” On Tuesday, June 6, Baumgarten asked Brixen if there were going to be any naked pictures of anyone underage on his phone. Brixen replied that he had naked pictures of girls but had deleted them. When Baumgarten asked whether the girls were under 18, Brixen replied that he did not know how to answer that question. Baumgarten told him to answer “honestly” and asked how old the youngest girl was whose naked picture he had on his phone. Brixen replied “17” but said “I don’t talk to them.”

Baumgarten applied for and obtained a warrant to search Brixen’s cell phone on June 7, 2017. Br. in Opp., dkt. 25-1. The warrant application lays out the electronic communications that Baumgarten had with Brixen while Baumgarten was posing as a 14-year-old girl, how Brixen had sent him a photograph, how Brixen and the “teenager” had made plans to meet at Woodman’s, and how Baumgarten was able to identify Brixen from the photographs Brixen had sent him and from his vehicle. The application further describes Baumgarten’s post-arrest conversations with Brixen, including Baumgarten’s sending of the Snapchat message to Brixen’s phone, Brixen’s refusal to consent to the search of his phone and his communications with Baumgarten via Facebook Messenger. Execution of the search warrant resulted in the discovery and seizure of images of child pornography.

Brixen was arrested on June 9, 2017 for possession of child pornography and housed at the Eau Claire County Jail.[1]

ANALYSIS

I. Baumgarten’s Viewing of Brixen’s Phone’s Home Screen

*3 Brixen argues that “Baumgarten’s viewing data on Brixen’s phone by looking at its screen” constituted an unlawful search under Riley v. California, 134 S. Ct. 2473 (2014). In Riley, the Supreme Court held that because of the unique nature and amount of information that can be collected from a cell phone, society has recognized an individual’s reasonable expectation of privacy in the “digital data” contained on his or her cell phone. Riley, at 2485, 2494–95. Before viewing this data, held the Court, the police must obtain a warrant. Id. at 2489–91.

The facts of Riley differ materially from those in this case. Riley involved two separate cases in which the police indisputably “searched” the contents of a cell phone. In the first, Riley’s case, the police accessed text messages or a contacts list on Riley’s phone and noticed some words associated with a street gang; two hours after Riley’s arrest, a detective specializing in gangs “went through” Riley’s phone and looked for evidence, including videos and photographs. Id. at 2480-81. In the second case, Wurie, the police opened Wurie’s flip phone after noticing that it was repeatedly receiving calls from a source identified as “my house” on the phone’s external screen; a few minutes later, they opened the phone and pressed a button to access its call log, then pressed another button to determine the phone number associated with the “my house” label. Id. at 2481. In both cases, the police accessed the phone’s contents and explored them while looking for information.

In contrast, courts have held both before and after Riley that a search does not occur when an officer simply calls an individual’s cell phone and hears it ring. United States v. Lawing, 703 F.3d 229 (4th Cir. 2012); United States v. Chambers, No. CR 15-59-GMS, 2017 WL 4005641, at *7 (D. Del. Sept. 12, 2017) (same); United States v. Nguyen, 2015 WL 685859 (D. Alaska Feb. 18, 2015) (same). In Lawing, the police stopped a car driven by a person they had reasonable suspicion to believe was a drug dealer based upon information provided by a confidential informant. Prior to the stop, the informant met with police and in their presence used a cell phone to arrange a drug buy from a person named “Drew.” The CI described to the police what Drew looked like, the vehicle he would be driving, the route he would take and when he would arrive. When a vehicle and driver matching the CI’s description arrived a short time later, the police effected a traffic stop, during which they seized the driver’s cell phone. A check of the vehicle’s registration showed that it was registered to Lawing and the driver produced a license that indicated that his name was Lawing. To confirm that Lawing was in fact “Drew,” one of the officers called the same telephone number that the CI had used to call Drew. Within five seconds, Lawing’s cell phone rang; a second call by the police produced the same result. Id. at 233-34.

The court rejected the defendant’s argument that the police “searched” his phone when they called it:

Id. at 238 (internal citations and footnotes omitted).

The same goes here. First, Detective Baumgarten had lawfully seized Brixen’s phone during a search incident to Brixen’s arrest. Detective Baumgarten did not attempt to retrieve any information from Brixen’s phone and he did not look at anything beyond the home screen. He did not view Brixen’s videos, photos, contacts or call logs like the officers who conducted the cell phone searches at issue in Riley. His sent a Snapchat message and then held Brixen’s phone up solely to confirm that Brixen was “Snappyschrader” and to reveal to Brixen that the 14-year-old girl with whom he thought he had been communicating was actually the police detective standing in front of him. The Snapchat notification that provided this confirmation appeared directly on the cell phone’s home screen, and it required no manipulation of the phone other than to bring the phone—which Brixen admits had been lawfully seized—into view. This is no different than if Baumgarten had taken all of the contents removed from Brixen’s pockets–keys, wallet, phone–and placed them on the car hood while questioning Brixen after Mirandizing him. The Snapchat notification would have been plain to see, just like a ring tone would have been plain to hear. In this situation, the pop-up notification was simply the visual equivalent of the confirmatory ring tone in Lawing. It was not a search.

Although United States v. Bell, 2016 WL 1588098 (C.D. Ill. Apr. 20, 2016), provides some support for Brixen’s position, I find it unpersuasive. In Bell, an officer grabbed the defendant’s flip phone from a bag or container outside the interview room, opened the phone (purportedly to turn it off), and showed the home screen—which depicted a photo of a stolen rifle—to the defendant. He then turned the phone off. Id. at *3. The government argued this conduct did not amount to a search under Riley because the phone’s home screen was “in plain view.” Id. at *3. The Bell court disagreed, noting that the officer’s “opening of the flip phone” exceeded the plain view doctrine because he “exposed to view concealed portions” of the phone, “i.e. the screen.” Id. The court recognized that although it was possible that the defendant had a lesser privacy interest in the information contained on his phone’s home screen than in the information stored elsewhere on the device, it observed that a phone’s screen is “[t]he lens through which all information on a cell phone is observed” and “regularly display[s] ... text messages, missed calls and other alerts.” Id. at *3. In light of this, the court was unwilling to accept the government’s contention that officers can “always open a phone and look at the screen to turn the phone off” without conducting a search at all. Id.

Unlike the officer in Bell, Detective Baumgarten did not “open” Brixen’s phone or manipulate it in any way. He merely sent a Snapchat message to the user he was sure was Brixen and waited for the notification to appear. Brixen’s phone was not a flip phone: its screen was in plain view. Thus, Bell is distinguishable on its facts. Moreover, although it is true that a cell phone’s screen regularly displays text messages and other alerts, most modern cell phones allow the user to “turn off” notifications to prevent them from appearing on the home screen, just as one can turn his or her phone on “silent” to prevent it from ringing or even vibrating. Apparently, Brixen had not selected this option, thereby exposing any notifications or alerts that appeared on his home screen to anyone who happened to view it. A search under the Fourth Amendment only occurs when there is an expectation of privacy in the contents of the searched object. Katz v. United States, 389 U.S. 347, 360–62 (1967). Brixen has not made that showing here with respect to notifications on his home screen.

II. Even if Baumgarten’s Actions Constituted a Search, Suppression is Not Warranted

*5 Brixen declined to allow the officers to search the contents of his phone, prompting Baumgarten to apply for a search warrant. “A search warrant obtained, in part, with evidence which is tainted can still support a search if the untainted information, considered by itself, establishes probable cause for the warrant to issue.” United States v. Scott, 731 F.3d 659, 664 (7th Cir. 2013) (citations and internal quotations omitted); see also United States v. Karo, 468 U.S. 705, 719 (1984) (“[I]f sufficient untainted evidence was presented in the warrant affidavit to establish probable cause, the warrant was nevertheless valid.”)(citing Franks v. Delaware, 438 U.S. 154, 172 (1978)). In assessing whether the results of the subsequent search must be suppressed, the court considers two questions: (1) whether the illegally obtained evidence affected the judge’s decision to issue the warrant; and (2) whether the decision to seek the warrant was prompted by information unlawfully obtained. Scott, 731 F.3d at 664.

At Exhibit 1 of its brief, the government has outlined the information in the June 7 warrant that it believes should be excised if the court were to find that Baumgarten’s viewing of Brixen’s home screen was unlawful. Brixen has not opposed this designation or suggested an alternative.[2] That being so, I agree with the government that the warrant would have issued regardless whether it was improper for Baumgarten to send Brixen’s phone a message at the scene and wait for it to appear. As is clear from the warrant, the message from Baumgarten that created the notification to appear on Brixen’s phone did not lead to the identification of the defendant, to the seizure of the phone in the first place, or to Baumgarten’s decision to apply for a warrant. Rather, the application sets forth the details of the conversation that Brixen had with a person he thought was a 14-year old girl, how the officers encountered Brixen at Woodman’s after he and the “teenager” had agreed to meet there, how the officers identified Brixen from photographs and his car, and how the agents obtained Brixen’s cell phone incident to his arrest. The warrant then explains how Baumgarten sent a Snapchat message to Brixen’s phone and showed the notification to Brixen, who ultimately admitted he was there to meet a 14-year old girl and take her to the mall.

True, Brixen admitted why he was at Woodman’s only after seeing the notification from Baumgarten’s alter-ego and Brixen realized that he had been caught red-handed. But Detective Baumgarten already had probable cause to arrest Brixen and search his phone based on the photos that “Snappyschrader” had sent of himself and the match of Brixen’s car and movements to those of Snappyschrader. As Baumgarten stated in the warrant application:

As this passage makes clear, it was Brixen’s actions before being confronted with the confirmatory Snapchat notification that led Baumgarten to apply for the warrant, not the notification itself or his parking-lot conversation with Brixen.

*6 In sum, even without the information about the Snapchat notification and Brixen’s admission, there still was probable cause to support the search warrant. Probable cause to search Brixen’s phone was established by his conversations with Baumgarten leading up to the confrontation in the Woodman’s parking lot, the fact that Brixen’s appearance, car and movements matched that of the suspect, and Brixen’s post-release statements in which he admitted having a nude picture of a minor on his phone. Because Baumgarten’s act of viewing a pop-up notification on Brixen’s home screen after sending a message to Brixen via Snapchat did not taint the probable cause analysis, there is no basis to suppress the evidence obtained pursuant to the search warrant.

RECOMMENDATION

Pursuant to 28 U.S.C. § 636 (b)(1)(B), I respectfully recommend that the motion of Edmund Brixen to suppress evidence, dkt. 17, be DENIED.

Entered this 7th day of February, 2018.

Elizabeth Altman

Assistant United States Attorney

222 West Washington Avenue, Ste. 700

Madison, WI 53703

Peter Moyers

Federal Defender Services of Wisconsin, Inc.

22 East Mifflin St., Ste. 1000

Madison, WI 53703

Dear Counsel:

The attached Report and Recommendation has been filed with the court by the United States Magistrate Judge.

The court will delay consideration of the Report in order to give the parties an opportunity to comment on the magistrate judge’s recommendations.

In accordance with the provisions set forth in the memorandum of the Clerk of Court for this district which is also enclosed, objections to any portion of the report may be raised by either party on or before February 21, 2018, by filing a memorandum with the court with a copy to opposing counsel.

If no memorandum is received by February 21, 2018, the court will proceed to consider the magistrate judge’s Report and Recommendation.

Sincerely,

/s/

Connie A. Korth

Secretary to Magistrate Judge Crocker

Enclosures

MEMORANDUM REGARDING REPORTS AND RECOMMENDATIONS

Pursuant to 28 U.S.C. § 636(b), the district judges of this court have designated the full-time magistrate judge to submit to them proposed findings of fact and recommendations for disposition by the district judges of motions seeking:

Pursuant to § 636(b)(1)(B) and (C), the magistrate judge will conduct any necessary hearings and will file and serve a report and recommendation setting forth his proposed findings of fact and recommended disposition of each motion.

Any party may object to the magistrate judge’s findings of fact and recommended disposition by filing and serving written objections not later than the date specified by the court in the report and recommendation. Any written objection must identify specifically all proposed findings of fact and all proposed conclusions of law to which the party objects and must set forth with particularity the bases for these objections. An objecting party shall serve and file a copy of the transcript of those portions of any evidentiary hearing relevant to the proposed findings or conclusions to which that party is objection. Upon a party’s showing of good cause, the district judge or magistrate judge may extend the deadline for filing and serving objections.

After the time to object has passed, the clerk of court shall transmit to the district judge the magistrate judge’s report and recommendation along with any objections to it.

*7 The district judge shall review de novo those portions of the report and recommendation to which a party objects. The district judge, in his or her discretion, may review portions of the report and recommendation to which there is no objection. The district judge may accept, reject or modify, in whole or in part, the magistrate judge’s proposed findings and conclusions. The district judge, in his or her discretion, may conduct a hearing, receive additional evidence, recall witnesses, recommit the matter to the magistrate judge, or make a determination based on the record developed before the magistrate judge.

NOTE WELL: A party’s failure to file timely, specific objections to the magistrate’s proposed findings of fact and conclusions of law constitutes waiver of that party’s right to appeal to the United States Court of Appeals. See United States v. Hall, 462 F.3d 684, 688 (7th Cir. 2006).