*1 Before the Court is Defendant Mateus Fernandes Evangelista Da Silva's (“Evangelista”) Motion to Dismiss (Doc. 82), and Motion to Suppress (Doc. 87). The United States filed responses in opposition (Docs. 93, 97). The Court held an evidentiary hearing on January 13, 2023, at which Special Agent William Williger, Homeland Security Investigations, and Evangelista testified. Following the hearing, Evangelista filed a supplemental brief (Doc. 114). For the reasons that follow, it is recommended that both motions be denied.

On or about October 6, 2021, the Department of Homeland Security began a human trafficking operation in conjunction with the Major League Baseball American League Divisional Series in St. Petersburg, Florida (Doc. 126, Tr. 6:4-7). According to Special Agent Williger, the purpose of the operation was to locate individuals that were willing to pay to have sex with underage females (Id., Tr. 6:8-10). As part of the operation, law enforcement posted advertisements on various adult websites that they believed would be viewed by individuals who were prone to commit commercial sex acts (Id., Tr. 6:11-14). One such advertisement for “Abbey and Alexis” was posted on the website www.megapersonals.eu (Doc. 82-1). Special Agent Williger explained that the advertisement contained sexual double-entendre having to do with baseball (Doc. 126, Tr. 6:15-19). It also contained the images if two female St. Petersburg Police Department detectives whose faces were digitally age regressed to make them appear younger (Id., Tr. 6:15-7:2). Special Agent Williger conceded, however, that it was possible for someone to believe the girls in the pictures were older than 18 (Id., Tr. 27:1-9). And while the advertisement described the girls as “young,” the age listed on the advertisement was 21 (Doc. 82-1). Special Agent Williger testified that because it is illegal to post an underage girl online, the website would only allow posts where the age listed was 18 or above (Doc. 126, Tr. 23:7-15).

At the time of the law enforcement operation, Evangelista was 21 years old. Evangelista was originally from Brazil but had been living in the United States for approximately three years (Id., Tr. 36:6-11). Evangelista's first language was Portuguese, but he also spoke Spanish and English (Id., Tr. 36:12-18; doc. 115-8). Evangelista had the equivalent of a high school education (Doc. 115-8).

On October 6, 2021, Evangelista called the number listed in the advertisement at 5:06 p.m. (Doc. 115-1).[1] After the call went unanswered, Evangelista immediately sent a text to the number asking whether both girls were available that night for a 30 minute incall.[2] An undercover law enforcement officer responded by text, “Yes” (Id.). Evangelista then asked, “How much it will be?” (Id.). To which the undercover officer responded:

*2 (Id.) (emphasis added). With this text, Evangelista was explicitly told for the first time that the girls were minors. Evangelista, however, did not hesitate upon learning that the girls were 13 and 14 years old. Less than 90 seconds later, Evangelista responded, “Yes tonight 9pm” (Id.). Evangelista then asked about the rules and requested pictures of the two minors to make sure they were the same girls as in the advertisement (Id.). Evangelista and the undercover officer agreed to meet at 8:00 p.m. (Id.).

At 7:41 p.m., Evangelista sent a text confirming that he was still coming but would probably be 10 minutes late (Id.). The undercover officer responded by asking Evangelista to text when he was nearby (Id.). At 8:01 p.m., Evangelista texted he would be around that area in about six minutes (Id.). Evangelista testified that no one pressured him to drive to the location— he made that decision by himself (Doc. 126, Tr. 40:9-11).

When Evangelista did not arrive on time, the undercover officer sent him a text asking about his location (Doc. 115-1). Evangelista responded that he just passed by the meeting spot because he saw the undercover officer and thought he looked like a cop (Id.). Evangelista testified that: “My concern was not only that he was a cop and not specifically due to the prostitution itself, but any contact with the police, I was worried of having any kind of contact with law enforcement because I was afraid that I could be sent back to my country of origin, Brazil” (Doc. 126, Tr. 37:16-20).

The undercover officer reassured Evangelista that he was not a cop and asked him to just come talk and have a beer (Doc. 115-1). Evangelista initially refused stating, “Im good I think bro,” but then immediately asked the overcover officer to video verify or send a photo of the girls (Id.; doc. 126, Tr. 41:9-14). When the undercover office told Evangelista that Abby (the purported 14-year-old) was outside with him, Evangelista responded. “Ok coming” (Doc. 115-1). When Evangelista arrived, he renegotiated a price to have commercial sex with one of the minors (Doc. 115-7). The undercover officer clarified, and Evangelista agreed, that Evangelista wanted the 13-year-old that just came to the door (Id.). Evangelista then went into the apartment, was arrested, and transported to the St. Petersburg Police Department (Id.). The encounter was recorded (Id.).

At the St. Petersburg Police Department, Evangelista was placed in an interview room (Doc. 115-8). Evangelista's right arm was handcuffed to a bar on the table in front of him (Id.). A detective from the St. Petersburg Police Department and a special agent with the Florida Department of Law Enforcement sat on the other side of the table (Id.). Neither law enforcement officer had any weapons visible during the interview (Id.). Evangelista was read his Miranda rights and the officers clarified those rights at Evangelista's request (Id.). Evangelista advised the law enforcement officers that he did not want to speak with them (Id.). The St. Petersburg detective then asked Evangelista for his consent to search his cell phone (Id.). Evangelista immediately responded: “yes, of course” (Id.). Evangelista then asked, “for what?” (Id.). To which the detective responded, “basically checking to make sure you are not talking to any other kids” (Id.). Evangelista responded, “sure” (Id.). The officers did not mention child pornography during this exchange (Id.). The detective then read to Evangelista the “St. Petersburg Police Department Consent to Search Cellular/Tablet Device” (“Consent Form”) (Doc. 115-3). The Consent Form specifically advised that Evangelista had “the right to refuse consent” (Id.). Evangelista was then provided a copy of the Consent Form (Doc. 115-8). After reading it, Evangelista confirmed that he understood the Consent Form and signed it (Docs. 115-3; 115-8). The Consent Form authorized a general search of the contents of Evangelista's phone without any limitations (Doc. 115-3). Evangelista also voluntarily provided the passcode to the phone (Docs. 115-3; 115-8). Evangelista testified that he understood everything that the law enforcement officers said to him in English (Doc. 126, Tr. 44:17-23). During the interview, law enforcement officers did not threaten or use psychological coercion against Evangelista (Doc. 115-8). After Evangelista voluntarily gave his consent, Special Agent Williger took possession of the Evangelista's phone and gave it to computer forensic agents to digitally extract the contents of the cell phone (Doc. 126, Tr. 19:8-13).

*3 On Evangelista's phone, the agents found chats between him and the undercover officer as well as eight videos of child pornography with screenshots of those videos (Doc. 126, Tr. 19:21-20:9). Evangelista testified that did not know that the child pornography was on his phone (Id., Tr. 44:4-13). After discovering the child pornography on Evangelista's phone, Special Agent Williger applied for a warrant to search the phone (Id., Tr. 20:2-12; Doc. 115-4). The application did not inform the Court that the cell phone had already been searched or that child pornography had been found on the phone (Doc. 115-4). In the affidavit submitted in support of the search warrant application, Special Agent Williger stated that he was seeking “a search warrant authorizing the forensic examination of a iPhone 12 Pro (the “TARGET CELL PHONE”), specifically described in Attachment A for contraband, evidence, fruits, and/or instrumentalities of violations of 18 U.S.C. §§ 1591 and 1594 (attempted child sex trafficking) and 2252 (receipt, transportation, distribution, and possession of child pornography), which items are more specifically described in Attachment B.” (Id.). Special Agent Williger further attested: “Based on my training and experience, I know that individuals interested in engaging in illicit sexual conduct, such as commercial sex, with minors are likely to also be in possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(b)” (Id.). The search warrant was approved by the undersigned and authorized the search of Evangelista's phone and the seizure of the following items:

(Doc. 115-5). The search warrant return listed the inventory of the property taken as “Digital Forensic Extraction of an Apple iPhone 12 Pro, Serial Number: G6TF3Y5TOD80” (Id.).

I. Motion to Dismiss

Evangelista contends that dismissal of the Indictment is warranted because the United States’ conduct during the underlying investigation was so outrageous that it “violated fundamental notions of fairness and Mr. Evangelista's Fifth Amendment right to due process.” (Doc. 82 at 1). Evangelista asserts that the government's conduct was outrageous because: (1) he had no known criminal characteristics; (2) there was no individual suspicion of Evangelista; (3) the crime was completely instigated by the government from start to finish; (4) the government actively encouraged Evangelista to commit the crime and; (5) there is no evidence that www.megapersonals.eu was a hotbed of online child sex trafficking or that child sex trafficking was endemic to the St. Petersburg area or otherwise on the rise (Doc. 82).

Evangelista's outrageous government conduct defense is based on the Supreme Court's recognition of the possibility that law enforcement's tactics may be “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431–32 (1973). Outrageous government conduct, however, is only a potential defense because “neither the Supreme Court nor [the Eleventh Circuit] has ever found it to actually apply and barred the prosecution of any case based on it.” United States v. Castaneda, 997 F.3d 1318, 1324 (11th Cir. 2021); see United States v. Cannon, 987 F.3d 924, 941 (11th Cir. 2021) (noting that “this defense has never succeeded here or in the Supreme Court” and that some of our cases “state that because this Court has never actually reversed a conviction based on outrageous government conduct, any discussion of it is merely dicta”); United States v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011) (“We have never applied the outrageous government conduct defense and have discussed it only in dicta.”); United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998) (“While the Supreme Court and this Court have recognized the possibility that government involvement in a criminal scheme might be so pervasive that it would be a constitutional violation, that standard has not yet been met in any case either before the Supreme Court or this Court.”). The Eleventh Circuit has gone so far as to liken the outrageous conduct defense to “the fabled creature Sasquatch, [in that] this defense has entered the common consciousness and is mentioned from time to time[, s]ome claim to have caught fleeting glimpses of it in the remote backwoods of the law, but its actual existence has never been confirmed.” Castaneda, 997 F.3d at 1324.

*4 Even though it has yet to apply the doctrine, the Eleventh Circuit has determined that “[o]utrageous government conduct occurs when law enforcement obtains a conviction for conduct beyond the defendant's predisposition by employing methods that fail to comport with due process guarantees.” Jayyousi, 657 F.3d at 1111–12 (quotation omitted). A defendant must show that law enforcement's techniques violate fundamental fairness, shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment. Cannon, 987 F.3d at 941. “Whether outrageous governmental conduct exists turns upon the totality of the circumstances with no single factor controlling and the defense can only be invoked in the rarest and most outrageous circumstances.” United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir. 1984) (quotations omitted).

Here, the government's conduct neither violated fundamental fairness nor was it shocking to a universal sense of justice. Rather, the government merely presented Evangelista with an opportunity to commit a crime—one he readily committed. Evangelista responded to the advertisement for the purpose of engaging in commercial sex. Even assuming Evangelista initially believed the advertisement was for 21-year-old women, he jumped at the opportunity to engage in commercial sex with a 13 and 14 year old. The fact that Evangelista booked the minors within 90 seconds of learning their age amply demonstrates his predisposition. See Jacobson v. United States, 503 U.S. 540, 549–50 (1992) (“[W]here the defendant is simply provided with the opportunity to commit a crime, ... the ready commission of the criminal act amply demonstrates the defendant's predisposition.”).

Moreover, the Eleventh Circuit has found similar conduct by the government did not constitute outrageous conduct. For example, in United States v. Simmons, 557 Fed. App'x 833 (11th Cir. 2014), the defendant's online posting advertised his desire to participate in someone's first sexual experience. The posting did not state that he was looking to engage in sex with a minor. Id. at 835. Nonetheless, law enforcement responded as “Rebecca” and asked at the outset whether it was okay that she was only 14 years old. Id. The defendant responded that he was “not concerned over age” and expressed enthusiasm at the prospect of “teach[ing]” a 14-year-old about sex in response to her concerns about her inexperience. Id. Even though law enforcement initiated the conversation about a minor, the Eleventh Circuit held that defendant had “not shown that the Government's conduct was outrageous.” Id. at 836.

Similarly, in United States v. Gillis, 938 F.3d 1181 (11th Cr. 2019), the defendant posted an ad that stated: “Looking for a guy or a group who [are] into extremely taboo scenes. Hi risk and reward for the right sadistic Pervert.” Id. at 1187. The defendant was looking for someone to assist him with kidnapping and raping his 40-year-old coworker. Id. An undercover FBI Special Agent responded to the ad and identified himself as a 40-year-old dad pervert with an 11-year-old. Id. Over the next two and a half weeks, the defendant and the Special Agent carried on a conversation in which they discussed (1) a plan to kidnap and rape the defendant's adult coworker, and (2) a plan for defendant to meet and engage in sexual activity with the Special Agent's fictional 11-year-old daughter. Id. After the defendant backed out of a meeting at the last minute, the Special Agent reached out to him the next day to resume discussions about the fictitious 11-year-old daughter. The defendant explained that he backed out of the first meeting because he was “a little nervous,” having “[n]ever been with a young one” before and was concerned that the Special Agent might be setting him up. Id. After being reassured that he was not being set up, they then planned a second rendezvous in which they would first meet to “show we are real” and then the Special Agent would take the defendant back to his house to meet the fictional daughter. Id. As they were planning this second meeting, the defendant asked the Special Agent seven times for more pictures of the daughter. Id. Ultimately, the defendant was convicted on charges which included attempting to induce or entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b).

*5 On appeal, the defendant argued, among other things,[3] that: (1) his advertisement itself evidenced no intent to induce a minor to engage in sexual activity; (2) the Special Agent introduced the notion of sex with a minor into the conversation; and (3) the defendant abandoned the first planned meeting with the minor, demonstrating an abandonment of any intent to engage in sexual activity with the minor. Id. In affirming the conviction, the Eleventh Circuit found that even though the Special Agent initiated discussions of the fictional minor, the defendant's responses “demonstrated his sexual interest in the daughter and intent to induce the daughter, through her father, to engage in sexual activity.” Id. at 1190. The Eleventh Circuit further found that the defendant “cancelled the first meeting because he was ‘nervous’ and feared he was being set up, not because he was no longer interested in engaging in sexual activity with the minor daughter.” Id.

Like in Simmons and Gillis, law enforcement here initiated the conversation about the underage girls with Evangelista, but he responded by demonstrating a sexual interest in the minors. Evangelista also requested additional pictures of the girls and to “video verify.” Evangelista drove to the apartment to have commercial sex with the underage girls. While Evangelista initially backed out of the meeting, it was not because he was no longer interested in engaging in commercial sex with the minors, but rather he thought the girls’ pimp looked like a law enforcement officer. Evangelista's phone contained child pornography videos and screenshots which indicate he had a preexisting sexual interest in minors. Given that the conduct of the government agents in this case was anything but outrageous, it is recommended that the motion to dismiss be denied. See Castaneda, 997 F.3d at 1326.

II. Motion to Suppress

On November 11, 2021, the Court authorized a warrant to search Evangelista's cell phone. Evangelista moves to suppress the evidence obtained from that search because he argues the “warrant was tantamount to a general warrant given its lack of content and temporal limitations, absence of particularity, and overbreadth.” (Doc. 87 at 3). More specifically, Evangelista asserts there “was no probable cause to search Mr. Evangelista's phone in such a broad manner as described in sections (1)(a)-(1)(b), section (1)(d), and section (2) of Attachment B” of the warrant. (Id. at 6). Rather, Evangelista suggests the warrant should have limited the search of Evangelista's phone to only “his browser history, text messages to the undercover phone number and his call log” for the “four-hour window in which [the alleged crime] occurred.” (Id. at 8). Evangelista further contends that the searched lacked objective standards to distinguish content and that there was no formal inventory of the data collected from the search. The United States responded by asserting that Evangelista provided consent to search his cell phone, the search warrant was not overbroad and, alternatively, the good-faith exception to the exclusionary rule applies (Doc. 97). Evangelista replies that the agent's request for consent to search his phone violated Miranda and the consent was limited in scope (Doc. 114).

A. Consent to Search

The Fourth Amendment protects “[t]he right of the people to be secure in their ... houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.” Riley v. California, 573 U.S. 373, 382 (2014). One of those exceptions is that a warrantless search is permissible if it is preceded by a valid consent. Fernandez v. California, 571 U.S. 292, 298 (2014). Indeed, “[w]hile the Fourth Amendment prohibits unreasonable searches, a search is reasonable and does not require a warrant if law enforcement obtains voluntary consent.” United States v. Morales, 893 F.3d 1360, 1367 (11th Cir. 2018) (internal quotation marks and alteration omitted). The government bears the burden of proving both the existence of consent and that the consent was not a function of acquiescence to a claim of lawful authority but rather was given freely and voluntarily. United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). To be voluntary the consent must be “the product of an essentially free and unconstrained choice.” United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001) (internal quotation marks omitted). “But beyond that, there is no neat talismanic definition of voluntary consent.” Morales, 893 F.3d at 1367 (internal quotation marks and alteration omitted). Instead, a court should consider the totality of the circumstances, including the:

United States v. Spivey, 861 F.3d 1207, 1213 (11th Cir. 2017) (internal quotation marks omitted).

Here, the Court finds that the totality of the circumstances establishes that Evangelista voluntarily consented to a search of his cell phone. Evangelista has the equivalent of a high school education and demonstrated intelligence during the interview. Although he was under arrest, the only physical force used against him was having one arm handcuffed. There was no coercive conduct on the part of law enforcement. The entire interview lasted just thirteen minutes, during which the law enforcement officers spoke to Evangelista in a calm and professional manner. When asked, the law enforcement officers repeated or clarified their statements and confirmed that Evangelista understood. Evangelista was advised of his right to refuse to consent to the search. Moreover, because Evangelista testified that he did not know that the child pornography was on his phone, he would not have expected his consent to have resulted in that incriminating evidence being discovered. Accordingly, the Court finds Evangelista's consent to search his phone was made knowingly and voluntarily.

1. Consent After Invoking Fifth Amendment Right Against Self-Incrimination

Evangelista contends that the request by law enforcement “for consent to search Evangelista's phone was a violation of his invocation of Miranda” (Doc. 114 at 2). Generally, however, the right against self-incrimination does not prohibit a request for a voluntary consent to search. For example, in Hidalgo, the Eleventh Circuit held that a defendant's consent was voluntary even after he invoked his Fifth Amendment rights against self-incrimination, because consent to search is not an incriminating statement. United States v. Hidalgo, 7 F.3d 1566, 1568 (11th Cir. 1993); see Oregon v. Elstad, 470 U.S. 298, 307 (1985) (“But the Miranda presumption, though irrebuttable for purposes of the prosecution's case in chief, does not require that the statements and their fruits be discarded as inherently tainted.”); see also Dickerson v. United States, 530 U.S. 428, 441 (2000) (explaining that “unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment”). Moreover, Evangelista was not compelled to provide his phone's passcode in violation of his Fifth Amendment rights. Rather, the record demonstrates that Evangelista voluntarily consented to a search of his phone and provided his passcode voluntarily to facilitate that search.

2. Scope of Consent

Generally, “[a] consensual search is manifestly reasonable so long as it remains within the scope of the consent, and whether any limitations were placed on the scope of consent is determined by the totality of the circumstances.” United States v. DeJesus, 435 F. App'x 895, 902 (11th Cir. 2011) (citations omitted). The scope of a search is generally defined by its expressed object. Fla. v. Jimeno, 500 U.S. 248, 251 (1991). “The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. at 251. Particularly relevant here, “[w]here no limits are placed on the scope of consent, a search is constrained only ‘by the bounds of reasonableness.’ ” DeJesus, 435 F. App'x at 902 (quoting United States v. Harris, 928 F.2d 1113, 1117 (11th Cir. 1991)).

*7 Here, Evangelista “concedes that [he] signed a general written consent form that gives the impression that he agreed to a general search of his phone” (Doc. 114 at 3). Evangelista contends, however, that he “believed that even if he signed the written form his consent was qualified to only that reason which the agent said he would be searching the phone for: to look for evidence of child sex trafficking” (Id.). But, even if Evangelista's consent was limited to evidence of child sex trafficking, an objectively reasonable person would have understood that consent to allow for a search of videos and pictures for evidence of child sex trafficking. For example, Evangelista made multiple requests for pictures and to “video verify” the purported minors that he sought to engage in commercial sex. It was objectively reasonable to search his phone for pictures or video verifications of other child victims that may be stored in Evangelista's phone. Accordingly, the Court finds that search of Evangelista's phone was within the scope of the consent.

B. Search Warrant

Even if the Evangelista's consent was invalid or the search exceeded the scope of his consent, the government subsequently searched his phone pursuant to a valid search warrant. When a government agent relies upon information obtained in an unlawful search to apply for a search warrant, courts “apply a two-part test to determine whether evidence seized during the execution of the warrant was discovered independent of the initial [unlawful search] and is therefore admissible regardless of whether the first [search] violated the Fourth Amendment.” United States v. Noriega, 676 F.3d 1252, 1260 (11th Cir. 2012). First, the court “excise[s] from the search warrant affidavit any information gained during the arguably illegal [search] and determine[s] whether the remaining information is enough to support a probable cause finding.” Id. “If the remaining or nonexcised information is enough to support a probable cause finding, ... [the court then] determine[s] whether the officer's decision to seek the warrant was ‘prompted by’ what [s]he had seen during the arguably illegal [search].” Id. (citing Murray v. United States, 487 U.S. 533, 542 (1988)). To determine whether an officer's decision to seek a warrant is prompted by what he saw during the initial search, courts ask whether the officer would have sought the warrant even if he had not conducted the initial search. Id. at 1260–61. “If the officer would have done so, his decision to seek the search warrant is supported by an ‘independent source,’ and the evidence seized under the warrant is admissible regardless of whether the initial [search] violated the Fourth Amendment.” Id. at 1261.

Here, the Court finds that the evidence seized during the execution of the warrant was discovered independent of the initial search. The affidavit submitted in support of the application for the search warrant made no reference to the initial search. Special Agent Williger testified credibly that had Evangelista not voluntarily provided his passcode, Williger would have applied for a search warrant. Nonetheless, Evangelista contends that “the fruits of the search warrant must be suppressed, because the warrant was tantamount to a general warrant given its lack of content and temporal limitations, absence of particularity, and overbreadth” (Doc. 87 at 3). The search warrant, however, was supported by probable cause and was as specific as the circumstances and the nature of the activity under investigation would permit.

1. Probable Cause

Evangelista contends that there “was no probable cause to search Mr. Evangelista's phone in such a broad manner as described in sections (1)(a) - (1)(b), section (1)(d), and section (2) of Attachment B” of the Search Warrant. These sections state: (1)(a) “All visual depictions, including still images, videos, films, or other recordings, of child pornography or minors engaged in sexually explicit conduct, as defined in 18 U.S.C. § 2256.”; (1)(b) “Text messages, chats, emails, social media, call records, other correspondence, address or contact records, photographs, images, and user-created notes concerning violations of the above-cited statutes”; (1)(c) all communications between Mr. Evangelista and the undercover agent on October 6, 2021; (1)(d) “Records of prices, sex acts, transportation arranged, and individuals trafficked as well as dates, places, and other details of specific transactions relating to violations of the above-cited statutes”; and (2) “Evidence of user attribution showing who used or owned the cell phone at the time the things described in this warrant were created, edited, or deleted, consisting of logs, internet searches, browsing history, phonebooks, and saved usernames and passwords” (Doc. 115-5).

*8 The affidavit, however, sets forth probable cause to establish Evangelista committed the offense of attempted sex trafficking of a minor, in violation of 18 U.S.C. § 1594, and that individuals engaged in sex trafficking of minors are likely to engage in the receipt, distribution, and possession of child pornography, in violation of 18 U.S.C. § 2252 (Doc. 115-4). In the affidavit, Special Agent Williger explained his understanding of the connection between computers, cellphones, and child pornography and how “computer technology has revolutionized the way individuals interested in child pornography interact with each other” and use these devices to collect child pornography (Id. at ¶¶ 7-15). The agent further explained that based on his training and experience, individuals interested in commercial sex with minors likely possess child pornography (Id. at ¶ 24). The affidavit disclosed texts messages where Evangelista requested and received pictures of the purported minors (Id. at ¶ 18). Special Agent Williger went on to describe the general conduct of individuals interested in illicit sexual conduct with minors and how they access and possess child pornography (Id. at ¶ 25). Files contained on electronic devices such as cellphones are known to remain on the device for months or even years after they were originally downloaded or viewed via the internet (Id. at ¶ 27). This information can subsequently be recovered by law enforcement officers with forensic tools (Id. at ¶ 30). Moreover, Special Agent Williger explained how individuals involved in sex trafficking frequently use their cellphones to commit the offense, resulting in evidence being recovered in the form of “text messages, chats, emails, social media, call records, other correspondence, photograph[s], images, and user-created notes” (Id. ¶ 31). Specifically, the information could reveal details such as prices, sex acts, method and arrangement of transportation, and victims (Id.). Accordingly, the search warrant was supported by probable cause.

2. Particularity

As to particularity, the “Fourth Amendment requires that a warrant particularly describ[e] the place to be searched, and the persons or things to be seized.” United States v. Bemka Corp., 368 F. App'x 941, 943 (11th Cir.2010) (per curiam) (alteration in original) (citation and internal marks omitted). “A warrant is sufficient where it describes ‘the place to be searched with sufficient particularity to direct the searcher, to confine his examination to the place described, and to advise those being searched of his authority.’ ” United States v. Aguirre, 368 F. App'x 979, 987 (11th Cir.2010) (per curiam) (quoting United States v. Burke, 784 F.2d 1090, 1092 (11th Cir.1986)). “The particularity requirement allows a practical margin of flexibility, depending on the type of property to be seized, and ‘a description of property will be acceptable if it is as specific as the circumstances and nature of activity under investigation permit.’ ” Id. at 987–88 (quoting United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir.1982)).

Here, the search warrant identified with specificity the item to be search as: “An Apple iPhone 12 Pro, with serial number G6TF3YSTOD80, which may include a Micro SD card or other electronic storage mediums (“TARGET CELL PHONE”). The TARGET CELL PHONE is currently in the custody of Homeland Security Investigations Tampa located at 2203 North Lois Avenue, Tampa, Florida.” (Doc. 115-5).

As to the items to be seized, a “search warrant does not necessarily lack particularity simply because it is broad.” United States v. Purcell, 967 F.3d 159, 179 (2d Cir. 2020) (quotation omitted). Courts have found search warrants for cell phones were sufficiently particularized where, as here, the “warrant[s] identified the types of property authorized to be seized and indicated the crimes involved for which evidence was sought.” United States v. Conrad, No. 3:12–cr–134–J–34TEM, 2013 WL 4028273, at *8 (M.D.Fla. Aug. 7, 2013); see also Signature Pharmacy, Inc. v. Wright, 438 F. App'x 741, 745-46 (11th Cir. 2011) (per curiam) (finding the items to be seized were described with particularity where the items were limited by the specific crimes charged); United States v. Brooks, No. 3:13–cr–58–J–34JRK, 2014 WL 292194, at *11 (M.D.Fla. Jan. 27, 2014) (finding that the warrants were limited to evidence of unlawful trafficking in firearms and unlawful entry of an airport in violation of security requirements and therefore “did not permit a free-ranging search.”).

Evangelista argues that “there was no basis to search [his] phone beyond the content generated within the limited four-hour window in which [the alleged crime] occurred” (Doc. 87 at 8). In determining the sufficiency of the warrant's description, the Eleventh Circuit has explained courts must “consider whether the description is ‘as specific as the circumstances and the nature of the activity under investigation permit.’ ” United States v. Sedlak, 697 F. App'x. 667, 668 (11th Cir. 2017) (quoting Wuagneux, 683 F.2d at 1349); see also United States v. Brooks, 648 F. App'x 791, 793 (11th Cir. 2016) (holding a search warrant in a child pornography investigation was not unconstitutionally overbroad “given that child pornography images may be stored anywhere on a computer or digital device, the search warrant in this case was ‘as specific as the circumstances and nature of activity under investigation [would] permit.’ ”). However, the fact that there was “no specific search protocol limiting time frame of searchable electronically stored information d[oes] not render the warrant overbroad.” See Sedlak, 697 F. App'x. at 668; see also Brooks, 648 F. App'x at 793 (finding there is no requirement for a search warrant to contain a search protocol to specify the computer files to be searched); United States v. Khanani, 502 F.3d 1281, 1290-91 (11th Cir. 2007) (rejecting argument that warrant to search computer files was invalid for not including specific written protocols); see also United States v. Lee, No. 1:14-CR-227-TCB-2, 2015 WL 5667102, at *10 (N.D. Ga. Sept. 25, 2015) (finding that the warrants were already adequately particularized based on the subject matter limitation to evidence relating to criminal copyright infringement, and therefore an additional temporal limitation was not required). Here, given the nature of the crimes under investigation and the fact the evidence of those crimes could be founds in the categories of items to be seized, the Court finds the that search warrant was as specific as the circumstances and the nature of activity under investigation would permit.

C. Good-Faith Exception

*9 Notwithstanding the above, the government contends that even if the search warrant had lacked probable cause or was otherwise deficient, the motion to suppress should still be denied because law enforcement relied in good faith on the search warrant. Under United States v. Leon, 468 U.S. 897, 919-21 (1984), “the exclusionary rule should not be applied to exclude evidence seized pursuant to a defective search warrant if the officers conducting the search acted in ‘objectively reasonable reliance’ on the warrant and the warrant was issued by a detached and neutral magistrate judge.” United States v. Robinson, 336 F.3d 1293, 1295-96 (11th Cir. 2003) (footnote and citation omitted). There are four situations in which the Leon good-faith exception does not apply, and suppression is warranted:

United States v. Martin, 297 F.3d 1308, 1313 (11th Cir. 2002) (citation and internal marks omitted). None of the circumstances precluding the good faith exception applies here as there is no allegation that false information was included in the affidavit, and there is nothing in the record that even hints that the undersigned magistrate judge who reviewed the affidavit and signed the search warrant engaged in any misconduct or abrogation of judicial responsibility. Finally, and as already discussed, the affidavit set forth sufficient probable cause, and in any event is not “so lacking ... as to render official belief in its existence entirely unreasonable.” Martin, 297 F.3d at 1313 (citation and internal marks omitted).

Moreover, the search warrant was not so facially deficient that the executing officers could not have reasonably presumed it to be valid. See United States v. Travers, 233 F.3d 1327, 1330 (11th Cir. 2000) (citation omitted) (finding warrant “was not ‘so facially deficient—i.e., failing to particularize the place to be searched or the things to be seized—that the executing officers could not have reasonably presumed it to be valid’ ”). For example, in United States v. Blake, 868 F.3d 960, 973 (11th Cir. 2017), the Eleventh Circuit cast doubt as to the constitutionality of a broad search warrant to Facebook (and to a lesser extent a search warrant to Microsoft), specifically noting that the warrant “should have requested data only from the period of time during which [the defendant] was suspected of taking part in” illegal activity. Id. Such a specification, the court stated, would have put to rest any claim that the warrants “were the internet-era version of a ‘general warrant’ ” Id. (internal citations omitted). Nevertheless, the court stopped short of finding that even the Facebook warrant was unconstitutionally broad, instead holding that the government relied on the search warrant in good faith. Id. at 974–75. According to the Eleventh Circuit, “while the warrants may have violated the particularity requirement,” the mere lack of temporal limitation did not render either of them facially unreliable at least based on the state of the law. Id. (emphasis added).

*10 The precise holding of Blake controls here. That is, even if the warrant should have had a date restriction, the warrant was not clearly invalid under then-existing law. The same result follows here. Accordingly, the law enforcement agents executing the warrant were justified in believing in its validity, and evidence seized during the execution of the cell phone warrant is not subject to suppression.

Accordingly, it is recommended that Defendant Mateus Fernandes Evangelista Da Silva's Motion to Dismiss (Doc. 82) and Motion to Suppress (Doc. 87) be DENIED.

REPORTED in Tampa, Florida on April 5, 2023.

Within fourteen days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to the proposed findings and recommendations or request an extension of time to do so. 28 U.S.C. § 636(b)(1); 11th Cir. R. 3-1. Failure of any party to timely object in accordance with the provisions of § 636(b)(1) waives that party's right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3-1.