United States v. Edmund Brixen ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1636
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDMUND J. BRIXEN,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:17-cr-00065-wmc-1 — William M. Conley, Judge.
ARGUED OCTOBER 29, 2018 — DECIDED NOVEMBER 7, 2018
Before BAUER, EASTERBROOK, and SCUDDER, Circuit Judges.
BAUER, Circuit Judge. An individual with the Snapchat
username “Snappyschrader” held himself out to be a thirty-
one-year-old male and agreed to assist a 14-year-old female
in purchasing undergarments. Unbeknownst to him, he
was communicating with Detective Baumgarten of the City
of Altoona Police Department. After agreeing to meet at a
2 No. 18-1636
supermarket, law enforcement officers identified “Snappy-
schrader,” arrested him, and seized his phone. The man they
arrested was Edmund Brixen. To illustrate to Brixen that he
had been communicating with an undercover detective,
Baumgarten sent a message to Brixen’s phone from the
undercover Snapchat account and Brixen witnessed the
notification appear on his phone screen. Brixen moved to
suppress this evidence arguing it constituted an unreasonable
search of his cell phone. The district court denied the motion
on the grounds that Detective Baumgarten’s actions did not
constitute a search under the Fourth Amendment. Brixen
timely appealed. For the reasons set forth herein, we affirm.
I. BACKGROUND
Beginning on May 24, 2017, City of Altoona Police Detective
Jeff Baumgarten posed as a fourteen-year-old female on a
smartphone application called Whisper under the username
“Bored_4_teen_f.” Baumgarten contacted another user,
“Death_Island,” who represented himself as a thirty-one-
year-old male and the two agreed to go shopping for “under-
wear and bras.” To facilitate this meeting “Death_Island”
disclosed his telephone number, two photos of himself, and
his Snapchat name, “Snappyschrader.”
Continuing the interaction on Snapchat, “Snappyschrader”
and “Bored_4_teen_f” agreed to meet at a local supermarket on
June 1. “Snappyschrader” stated he would be driving a black
car and suggested they meet in front of the store. Just before
1:00 p.m. “Snappyschrader” sent a Snapchat message to
“Bored_4_teen_f” indicating he was on his way. A few minutes
later Baumgarten observed a black car drive into the super-
No. 18-1636 3
market parking lot and witnessed someone exit the car who
matched the identity of the individual in the two photographs
sent by “Snappyschrader.” This individual began walking
toward the supermarket entrance while checking his phone
and appeared to be scanning the front of the store as if trying
to locate someone. Before he was able to enter the supermarket
Baumgarten and two other officers arrested him. The individ-
ual arrested is the defendant-appellant in this case, Edmund
Brixen.
The officers searched Brixen’s person incident to the arrest
and seized, among other things, his cell phone, which was
powered on at the time. After being read his Miranda rights,
Brixen agreed to speak with the officers and explained he
was at the store to buy food and denied he intended to meet
anyone. To illustrate that the officers knew why he was there
and that he had been interacting with an undercover detective,
Baumgarten used his police cell phone to send a Snapchat
message to “Snappyschrader.” Brixen watched the phone held
by Baumgarten as a Snapchat notification appeared on the
screen and indicated he had received a message from
“Bored_4_teen_f.” Baumgarten did not access any content
within Brixen’s phone, nor did he manipulate the phone in
any way before he obtained a search warrant. After witnessing
the notification, Brixen admitted he intended to meet a
fourteen-year-old female to take her shopping for “undergar-
ments.” Brixen also indicated that he planned on providing
the girl with advice and denied having nude images of
underage girls on his phone.
Brixen was released from custody the next day and Baum-
garten obtained a warrant to search Brixen’s cell phone on
4 No. 18-1636
June 7. The search revealed child pornography and evidence
that Brixen transported a minor across state lines to engage in
criminal sexual activity. Brixen was arrested on June 9. He
moved to suppress the evidence that the notification appeared
on his phone when Baumgarten sent the Snapchat message.
Before the district court ruled on the motion, the parties
entered into a plea agreement that included a broad waiver of
Brixen’s appellate rights, but reserved for appeal any denial of
the motion to suppress. Subsequently, the magistrate judge
recommended the motion be denied because the detective’s
actions did not constitute a search and even if they did,
suppression was not warranted because the evidence obtained
did not affect the validity of the search warrant for Brixen’s
phone. The district court adopted this ruling and Brixen timely
appealed.
II. ANALYSIS
Brixen argues the district court erred in denying his motion
to suppress the evidence that resulted from Baumgarten
sending the Snapchat message to his phone and Brixen’s
subsequent statements. The government countered with an
argument asserting that this Court does not have jurisdiction
because Brixen lacks standing. The Court will discuss each
issue in turn.
A. Standing
The government challenges our appellate jurisdiction
claiming Brixen lacks standing. The government contends
redressability is not possible because Brixen concedes in his
briefs that the warrant to search his cell phone is valid and that
is the sole issue on appeal. We are obligated to assess our own
No. 18-1636 5
jurisdiction and we undertake this review de novo. United States
v. Volpendesto, 755 F.3d 448, 450–51 (7th Cir. 2014); Muratoski v.
Holder, 622 F.3d 824, 829 (7th Cir. 2010).
Article III of the Constitution limits the jurisdiction of
federal courts to “cases” and “controversies.” Const. art. III,
§ 2. The case-or-controversy requirement applies throughout
the stages of federal judicial proceedings, both trial and
appellate. Ostby v. Manhattan Sch. Dist. No. 114, 851 F.3d 677,
682 (7th Cir. 2017) (citing Lewis v. Continental Bank Corp., 494
U.S. 472, 477–78 (1990)). To establish standing a litigant must
establish it suffered an actual, concrete injury that is fairly
traceable to the challenged conduct and likely to be redressed
by a favorable judicial decision. Spokeo, Inc. v. Robins, — U.S.
—, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016). If a federal
court’s decision will not affect the rights of the litigants, the
aggrieved party would be unable to illustrate the redressability
component of standing, rendering any judicial decision in the
case an impermissible advisory opinion. Brown v. Bartholomew
Consol. Sch. Corp., 442 F.3d 588, 596 (7th Cir. 2006). The govern-
ment contends this has happened in the case at hand. We
disagree.
On appeal, Brixen does concede that “the evidence recov-
ered under the subsequent search warrant remains admissible
because even after excision of the tainted evidence from the
supporting affidavit, it still establishes probable cause.”
Appellant’s Opening Brief at 20. The government contends this
concession renders the evidence he seeks to suppress admissi-
ble regardless of how we rule and therefore Brixen is unable to
establish the redressability aspect of standing and jurisdiction
6 No. 18-1636
is lacking. However, Brixen does not seek to suppress the
message itself. Rather, he seeks suppression of the evidence
that Baumgarten sent a message that Brixen and Baumgarten
witnessed immediately appear on Brixen’s phone and all
derivative evidence, including inculpatory statements. Accord-
ingly, a judicial decision favorable to Brixen would mean
evidence the district court found to be admissible would
become inadmissible. Limiting the amount of inculpatory
evidence the government can utilize clearly affects Brixen’s
rights. Suppression in this instance could give Brixen more
leverage in renegotiating his plea deal or could result in
evidence being inadmissible if the plea negotiations fall apart
and the case goes to trial. Thus, redressability has been
established and the Court has jurisdiction.
B. Motion to Suppress
Brixen argues that Baumgarten sending a message and then
viewing the notification on Brixen’s phone constituted an
unlawful search under Riley v. California, 134 S. Ct. 2473, 189
L. Ed. 2d 430 (2014). Brixen asserts he sought to preserve the
privacy of his cell phone screen by keeping it in his pocket,
therefore the police were required to obtain a warrant before
searching his phone. When reviewing a district court’s ruling
on a motion to suppress, we review findings of fact for clear
error and conclusions of law de novo. United States v. Stewart,
902 F.3d 664, 672 (7th Cir. 2018).
“[T]he ultimate touchstone of the Fourth Amendment is
reasonableness.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
But when law enforcement officials search for evidence of
criminal wrongdoing, reasonableness generally necessitates
No. 18-1636 7
obtainment of a judicial warrant. Veronia Sch. Dist. 47J v. Acton,
515 U.S. 646, 653 (1995). If a warrant is not obtained, a search
is only reasonable if it falls within a specific exception. Id.
Here, there is no dispute that the seizure of the cell phone
incident to Brixen’s arrest was lawful. What is disputed is
whether Baumgarten’s actions after the phone was seized
constituted an unreasonable search in violation of the Fourth
Amendment. Because we find Baumgarten did not search
Brixen’s phone, nor did Brixen have a reasonable privacy
interest in the information observed by Baumgarten, we find
no constitutional violation occurred.
In Riley, the Supreme Court held that before searching a cell
phone seized incident to an arrest, law enforcement officers
must generally obtain a warrant. Id. at 2495. Riley involved two
separate cases, both of which concerned law enforcement
officers affirmatively accessing the content of the defendants’
cell phones. Id. In the first case, David Riley was arrested for
possession of concealed and loaded firearms that the police
found in his vehicle. Id. An officer searched Riley incident to
the arrest and seized his cell phone. Id. The officers then
accessed information within Riley’s phone and discovered
evidence that he was affiliated with a gang. Id. Additionally,
around two hours after the arrest, a detective that specialized
in gangs further examined the contents of the phone. Id. at
2481. At Riley’s trial, police officers testified regarding photo-
graphs and videos that were found on the phone, and some of
the photographs were also admitted into evidence. Id. The
second case involved Brima Wurie who was arrested for
participating in a drug sale when law enforcement officers
seized two cell phones from his person. Id. After arriving at
8 No. 18-1636
the station, officers opened his phone, accessed its call log, and
identified a phone number associated with a contact Wurie
had received several calls from. Id. The officers used an online
phone directory to trace the phone number to an apartment
building where they saw Wurie’s name on a mailbox and
observed through a window a woman they believed was
pictured on the home screen of Wurie’s phone. Id. After
securing a warrant, officers searched the apartment and seized
215 grams of crack cocaine, marijuana, drug paraphernalia, a
firearm and ammunition, and cash.
The searches in Riley and its progeny have a common
thread—they involve law enforcement officers affirmatively
accessing the content within cell phones to gather evidence
against arrestees. Seventh Circuit cases applying Riley confirm
this. See United States v. Gary, 790 F.3d 704, 708 (7th Cir. 2018)
(holding a detective’s search of a cell phone to discover its
number and accessing its call log to verify the phone received
a call from the detective’s phone number was unconstitutional
under Riley); United States v. Jenkins, 850 F.3d 912, 916 (7th Cir.
2017) (the government conceded that searching through the
settings to determine the phone’s number and accessing its call
log was unconstitutional under Riley). Here, Baumgarten’s
actions simply do not amount to a search of Brixen’s cell
phone. He did not open or otherwise manipulate Brixen’s
phone. Nor did he gain access to any of the phone’s content or
attempt to retrieve any information from within the phone.
Our sister circuit reached the same conclusion, albeit in an
opinion that predated Riley. United States v. Lawing, 703 F.3d
229, 238 (4th Cir. 2012). In Lawing, law enforcement officers
No. 18-1636 9
pulled over an individual who fit the description of someone
they believed was delivering drugs. Id. at 233. Unsure of
whether they had pulled over the correct individual, the
officers decided to call the telephone number used by their
confidential informant to order the drugs. Id. at 233–34. After
calling the number twice and witnessing Lawing’s phone ring
twice, the officers were satisfied he was the drug dealer. Id. at
234. Accordingly, the police officers then frisked and detained
him and began searching his vehicle. Id. The court held:
Nothing in the record supports Lawing’s claim
that his cell phone was the subject of a search.
The police did not attempt to retrieve any infor-
mation from within the phone. Instead, the
officers’ possession of Lawing’s cell phone was
limited to quickly determining whether
Lawing’s phone would ring when [the drug
dealer’s] number was dialed.
Id. at 238. Similarly, Baumgarten did not retrieve any
information from Brixen’s phone. Riley concerned affirmative
manipulation of a cell phone in order to retrieve information
from within the phone. Here, since the phone’s content was not
affirmatively accessed by law enforcement officers, no search
occurred.
Nevertheless, Brixen argues he had a reasonable expecta-
tion of privacy in the contents of his phone screen because he
attempted to preserve the notifications as private by keeping
his phone in his pocket. But once he was arrested, he retained
no significant Fourth Amendment interest in the privacy of his
person and the search incident to arrest allowed law enforce-
10 No. 18-1636
ment officers to seize his cell phone. Riley, 134 S. Ct. at
2488 (citing United States v. Robinson, 414 U.S. 218, 237 (1973)
(Powell J., concurring) (“I believe that an individual lawfully
subjected to a custodial arrest retains no significant Fourth
Amendment interest in the privacy of his person”), and United
States v. Chadwick, 433 U.S. 1, 16 n. 10 (noting that searches of
a person incident to arrest are justified in part by “reduced
expectations of privacy caused by the arrest”)). Upon arrest,
Brixen no longer had a right to keep his phone in his pocket
and once the phone was seized the notification projected on the
screen was plain to see, just as a ringtone would have been
plain to hear. And just as an individual who fails to conceal a
phone’s ring from those in earshot does not have a reasonable
expectation of privacy, an individual who allows notifications
to appear to those in plain sight does not have a reasonable
expectation of privacy.
It is clear from Riley that law enforcement officers cannot
affirmatively access an arrestee’s cell phone. Thus, disabling
notifications that automatically appear on the phone would
have preserved the message as private. Brixen simply had no
reasonable expectation of privacy in a conspicuous notification
once his phone was seized. The diminished privacy interests
Brixen had as an arrestee make this conclusion even more
inevitable.
III. CONCLUSION
We conclude that the actions taken by Detective Baum-
garten did not violate the Fourth Amendment. He did not
affirmatively access any information on the phone and only
witnessed what was in plain view. Additionally, Brixen did not
No. 18-1636 11
have a reasonable expectation of privacy in the conspicuous
notifications that appeared on his phone after it was seized
incident to arrest. For the foregoing reasons, the judgment of
the district court is AFFIRMED.