United States District Court, D. Rhode Island
J. McConnell, Jr. United States District Judge
Boudreau was arrested in Connecticut on December 29, 2015.
Incident to that arrest, law enforcement took possession of
two cell phones he had on his person. He was arraigned,
detained, and the phones remained in police custody. On
January 13, 2016, the parties filed a joint motion to
continue the date to bring an indictment until February 27,
2016 because they were engaged in pre-indictment plea
negotiations with a goal to obviate indictment and trial. An
agreement was not reached so the case proceeded and on
February 16, 2016, the Grand Jury indicted Mr. Boudreau. The
government continued its investigation as to Mr.
Boudreau's criminal involvement, culminating in the March
18, 2016 issuance of a search warrant for both cell phones.
Thirty-one days had passed. Law enforcement searched the
phones on March 23, 2016 and uncovered pornographic images of
children on one of the phones.
Boudreau moves to suppress all of the fruits of that March
2016 search. He argues that he had a strong possessory
interest in the cell phone and the 8O"day delay between
his arrest and the issuance of the search warrant rendered
its seizure an unreasonable infringement on his possessory
interest under the Fourth Amendment.
reasonableness of the delay between lawful seizure and
seeking a warrant is up to the discretion of the court; a
determination must be made on a case-by-case basis and in
light of all the circumstances, and by carefully balancing
the significance of the interference with the person's
possessory interest, the duration of the delay, whether the
seizure was consented to and the government's interest in
holding the property as evidence. United States v.
Laist, 702 F.3d 608, 613-14 (11th Cir. 2012). "[I]n
some contexts, a delay as short as 90 minutes may be
unreasonable; while in others, a delay of over three months
may be reasonable." Id. at 614 (citations
omitted). Moreover, courts have held that a defendant in
custody has a more limited possessory interest than an
individual not in custody. United States v.
Sullivan, 797 F.3d 623, 630, 633 (9th Cir. 2015)
("Where individuals are incarcerated and cannot make use
of seized property, their possessory interest in that
property is reduced.").
Boudreau argues that he had a significant possessory interest
even though he was incarcerated and could not physically
possess his phone. In his briefing, he argued that this
interest stemmed from the fact that the phone contained
personal information. At the argument, Mr. Boudreau raised
for the first time to both the government and the Court that
his cell phone contained information that was very important
to his civil case appeal that he was in the process of
preparing. See Boudreau v. Lussier, et al, CA. No.
13-388"WES"LDA. Mr. Boudreau filed two
affidavits as proof of this assertion, his own and
one from a legal assistant at the Office of the Federal
Offender. The affidavits describe the materials, like emails
and deposition transcripts, that were only available on his
cell phone. He asserts that he was able to file the notice of
appeal the day after his arrest, but needed many of the
documents on his phone to prepare for the substantive appeal.
He executed a Power of Attorney granting his mother access to
his papers so, even though he was in jail and not allowed to
have his phone, she could have accessed the legal documents
in his stead. As a result, he had difficulty preparing his
appeal. Mr. Boudreau relied heavily on the Federal
Defender's staff to print and mail documents on PACER to
him. The legal assistant at the Federal Defender's office
affirmed that she did not have access to all the documents
Mr. Boudreau said he needed. She detailed twelve separate
requests for documents, comprising of over 100 filings and
over 100 exhibits. Even though he did not have access to his
phone, Mr. Boudreau was able to file his appellate brief.
the facts through the Laistlens, the Court finds
that Mr. Boudreau had a limited possessory interest in his
cell phones in light of the fact that he was incarcerated.
While there is no question that being able to access
documents to help him prepare for a civil appeal is
important, the Court notes that Mr. Boudreau did not inform
the government that the phone contained materials necessary
to the pressing of his civil case or appeal or that he had
executed a Power of Attorney-authorizing his mother to access
his legal papers. He never asked that the phone be returned
or for access to it during this period. The first the
government learned of this issue was during the initial oral
argument on this motion more than two years after his arrest.
This omission on Mr. Boudreau's part leads the Court to
believe that the possessory interest was in fact not so
significant. This omission, in addition to the fact that Mr.
Boudreau was able to prepare his appeal with the documents
the Federal Defender's Office provided, militates against
finding that he had a significant possessory interest in the
response to Mr. Boudreau's assertion that the 80 days
from arrest to warrant was unreasonable, the government
counters that the delay was only thirty-one days in light of
the parties' joint motion to continue. The Court agrees
and will not consider the entire period from arrest to
warrant as Mr. Boudreau advocates. Thirty-one days is a more
accurate reflection of the period of time that the government
waited to pursue the warrant - if the government thought Mr.
Boudreau was going to plead, there was no point in continuing
its investigation or seeking a warrant. And the Court finds
that that time period was reasonable because during that
thirty-one-day period, the government's investigation
leading to the warrant continued once plea negotiations were
exhausted. The government and other law enforcement agencies
pursued the case for a month in accordance with their best
practices and judgment. The case agent had to coordinate with
multiple law-enforcement agencies involved in Mr.
Boudreau's case, including to arrange for another agency
to search the phones because Mr. Boudreau had a history of
making complaints against one of the computer forensics
analysts with the Rhode Island State Police. Mr. Boudreau
points to no evidence and makes no allegation to refute the
government's assertion that it actively and reasonably
pursued this case.
Boudreau was incarcerated and thus had a limited possessory
interest in his cell phones. That general presumption cannot
be overcome by his need to access certain information he
believed necessary for his civil case appeal - especially not
in light of his failure to notify the government of this
need. The Court finds that the delay in getting the search
warrant was not unreasonable and did not violate Mr.
Boudreau's Fourth Amendment rights. Mr. Boudreau's
Motion to Suppress (ECF No. 68) is DENIED.
 This search was the subject of two
earlier motions to suppress, both of which this Court denied.
ECF Nos. 40, 53.
 Because the images Mr. Boudreau seeks
to suppress were found on one phone, the Court will refer to
that phone only.
 As this situation was not raised in
his initial motion, the Court permitted Mr. Boudreau to file
an affidavit in support of his argument that the fruits of
the cell phone search should be suppressed due to the
significance of ...