United States v. James Thomas Butler, II

USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 1 of 23
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11628
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES THOMAS BUTLER, II,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:18-cr-00179-TJC-MCR-1
____________________
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 2 of 23
2 Opinion of the Court 22-11628
Before LAGOA, BRASHER, and HULL, Circuit Judges.
PER CURIAM:
After a jury trial, defendant James Butler appeals the district
court’s denials of his motions to suppress evidence obtained from
a forensic examination of a Samsung Galaxy model SM-G935A
smartphone (the “Samsung smartphone”). Butler consented to a
search of the Samsung smartphone during the execution of a search
warrant at his residence.
On appeal, Butler argues that (1) the government’s forensic
search of the Samsung smartphone exceeded the scope of his
consent, and (2) the district court, in evaluating the reasonableness
of law enforcement’s delay in conducting this forensic search, erred
when it found that he did not have a significant possessory interest
in the smartphone. After careful review of the record and the
parties’ briefs, we affirm the district court’s denials of Butler’s
motions to suppress.
I. FACTUAL BACKGROUND
On October 10, 2018, Butler was charged with (1) sexual
exploitation of a minor for the purpose of producing child
pornography, in violation of 18 U.S.C. § 2251(a), (e) (“Count 1”),
and (2) possession of a black Samsung smartphone containing
visual depictions involving the sexual exploitation of a minor, in
violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (“Count 2”).
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 3 of 23
22-11628 Opinion of the Court 3
On March 4, 2019, Butler moved to suppress his statements
made during the search of his residence on May 2, 2018, and any
evidence obtained from the search of his Samsung smartphone.
On December 11, 2019, Butler filed a second motion to suppress all
evidence obtained from the forensic search of his Samsung
smartphone.
A magistrate judge held two hearings on Butler’s motions to
suppress. The hearing testimony revealed the following details
about the May 2, 2018, search at Butler’s residence and the June 26
and August 15, 2018, forensic examinations of Butler’s Samsung
smartphone.
A. May 2, 2018, Search of Butler’s Residence
On May 2, 2018, federal and state law enforcement agents
executed a search warrant at Butler’s residence in Jacksonville,
Florida. The agents were investigating Paul Edward Lee, Jr., who
lived in the residence, for soliciting child pornography. All
occupants of the residence, including Butler, were registered sexual
predators or sexual offenders.
On the morning of May 2, 2018, the agents (1) entered the
residence, (2) handcuffed all of the residents for officer safety, and
(3) escorted the residents to a carport. While the residents were
gathered in the carport, one of the agents told the residents that a
federal search warrant was being executed at the property.
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 4 of 23
4 Opinion of the Court 22-11628
B. Agents Interview Butler
After clearing the premises, the agents began to interview
the residents. Federal Bureau of Investigation (“FBI”) Agent
Nicholas Privette and Jacksonville Sheriff’s Office Detective Brent
Ellis approached Butler and removed Butler’s handcuffs. The
agents told Butler that (1) Butler was not under arrest, and (2) the
agents wanted to speak with him if he was willing to be
interviewed.
Butler told the agents that he was “willing to help . . . in any
way that [they] needed” but asked if he could make a call to let his
employer know that he was going to be late for work that day.
With the agents’ permission, Butler used the Samsung
smartphone, which he kept on his belt holster, to call his employer.
Agent Privette then showed Butler a folder containing
sexually explicit text messages with a minor and told Butler that
the agents were at the residence “because somebody was having
contact with a minor.”
The agents asked Butler some questions about Lee. In
response to these questions, Butler told the agents that (1) he had
not used Lee’s phone for any reason, and (2) he had not used Lee’s
phone to engage in the types of criminal activity that the agents
were investigating.
C. Butler Consents to a Search of the Samsung Smartphone
Agent Privette then told Butler that the agents were
executing a search warrant and were looking for vehicles and
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 5 of 23
22-11628 Opinion of the Court 5
electronic devices.1 Agent Privette asked if Butler owned any
phones other than the Samsung smartphone, and Butler said that
the Samsung smartphone was the only phone he owned.
Agent Privette asked if he “could take a look at” the
Samsung smartphone. Butler consented and handed the
smartphone to Agent Privette.
Immediately after handing over the phone, Butler retrieved
a second phone from his pocket and handed that phone to Agent
Privette. Butler told the agents that (1) the Samsung smartphone
on his holster was his mother’s phone, (2) he used the Samsung
smartphone to take photographs for work because the phone had
a good camera, and (3) the second phone, which Butler had
retrieved from his pocket, was Butler’s personal phone. Agent
Privette testified that Butler was “cooperative” and willingly gave
Agent Privette the phones.
Next, Agent Privette asked Butler if he could “search” both
phones, and Butler stated that he could do so.
Agent Privette told Butler that he was going to take both
phones to a table behind him so that other agents who handled
technical matters could “take a look at them.” Agent Privette asked
Butler if that was okay, and Butler said that it was.
1 The search warrant authorized law enforcement to search the residence, and
the list of items to be “seized and searched” included “cellular telephones” and
“‘smart’ phones.”
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 6 of 23
6 Opinion of the Court 22-11628
After walking away with the phones, Agent Privette realized
that the Samsung smartphone was locked, so he brought the phone
back to Butler and asked: “If it’s okay with you, can you unlock it?”
Butler consented and punched in the password to unlock the
phone.
Agent Privette asked if Butler could show him the password
“so that if [the phone] locked back up, . . . the technical experts or
[Agent Privette] would remember what it was.” Butler provided
the password to Agent Privette and agreed that the agents could
use that password to unlock the phone.
After Agent Privette gave the two phones to the technical
personnel, he asked Butler: “Should I have any questions based on
the content of either of the phones, is it okay if I come back and we
talk about that?” Butler responded: “No problem. If you have any
questions, you let me know.” Butler never revoked his consent to
the search.
D. Agent Privette Asks Butler about the Applications on the
Samsung Smartphone
After returning to the table with the technical personnel,
Agent Privette learned that several applications were running in
the background of the Samsung smartphone. These applications
were (1) an adult pornography website, and (2) a text-based chat
log on a program called Google Hangouts, containing a
conversation of a sexual nature between an adult and a younger
person.
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 7 of 23
22-11628 Opinion of the Court 7
Agent Privette first showed Butler the adult pornography
website that was running on the Samsung smartphone and asked
Butler if he had searched for the website. Butler said that the
website “didn’t look familiar” but it was “probably something that
he might look at.” Agent Privette told Butler that the girls in some
of the pictures looked “pretty young” and warned him to be more
careful.
Agent Privette then asked Butler if he recognized the Google
Hangouts chat or the name “Peanut the Unicorn,” which was the
username associated with the chat. Butler stated that he did not
know anything about the chat and did not recognize the username.
Later, FBI Agent David Busick informed Agent Privette that
a small white piece of paper with the handwritten words “Google
Hangouts - Peanut the Unicorn,” “Dcups,” and “Kik” had been
found in Butler’s room. When Agent Privette asked Butler about
the note, Butler stated that (1) he did not recognize the note, and
(2) he did not believe the note was found in his bedroom.
Agent Privette escorted Butler back into the residence so
Butler could see where the agents had found the note. Agent
Privette introduced Butler to Agent Busick, who told Butler that
the note was discovered in Butler’s room inside a grocery bag that
contained receipts and other papers that appeared to be associated
with Butler. Butler acknowledged that the room and the bag
belonged to him.
Agent Privette told Butler that the FBI would try to identify
the person associated with the “Peanut the Unicorn” username.
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 8 of 23
8 Opinion of the Court 22-11628
Butler, who now appeared “frustrated,” raised his voice and
reiterated that he did not know anything about the note or “Peanut
the Unicorn.” When Agent Privette told Butler that he would try
to identify and talk to the person with that username, Butler said,
“that would be fine,” and added, “whatever they say, just
remember that I was here and I told you the truth today.”
The FBI agents subsequently entered the Samsung
smartphone into evidence. The agents returned Butler’s personal
phone to him after the interview ended because they saw nothing
on that phone that required further investigation.
E. Butler’s Arrest and the Forensic Examination of the
Samsung Smartphone
Later that same day (May 2, 2018), state probation officers
arrested Butler for violating the terms and conditions of his
supervised release.
On June 26, 2018, Christina Polidan, an FBI forensic
examiner, completed a logical extraction of the Samsung
smartphone. Polidan explained that a logical extraction is a “very
basic extraction” that shows what the user can see, including “all
text messages, videos, calendar, call logs, [and] items like that.”
On August 15, 2018, Polidan conducted a physical extraction
of the smartphone. Polidan testified that a physical extraction is “a
much more detailed extraction” that “can get information such as
deleted items, file system information,” and even “data from third-
party applications.”
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 9 of 23
22-11628 Opinion of the Court 9
Polidan testified that the delay between the May 2 seizure of
the Samsung smartphone and the two extractions was due to
administrative backlog. At the time of the seizure, Polidan and one
other forensic examiner were covering all of North Florida.
F. Child Pornography Is Found on the Samsung
Smartphone
On September 21, 2018, FBI Agent Abbigail Beccaccio
reviewed the contents of the logical extraction of the Samsung
smartphone. After reviewing this information, Agent Beccaccio
applied for a federal search warrant for Butler’s residence, and this
warrant was issued on October 1, 2018.
The search warrant application included an affidavit from
Agent Beccaccio, who stated that the logical extraction of the
smartphone revealed (1) 65 videos that appeared to depict a minor
in a bedroom, (2) 35 screenshots captured from these videos, and
(3) 8 images of instructions from a user manual for a remote
wireless hidden camera, which was connected to a router. 2 At least
five of the videos captured the lascivious exhibition of the minor’s
genitalia, and at least one recorded the minor as she masturbated.
The minor in these videos did not appear to be aware of the
camera. Agent Beccaccio stated that she (1) identified the
individual in the images and videos, (2) confirmed that this
individual was under the age of 18 years old, (3) learned that the
2 The smartphone also contained a video of a minor in a two-piece bathing
suit on a beach. Several portions of the video focused on the minor’s breasts
and genitalia.
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 10 of 23
10 Opinion of the Court 22-11628
minor was living at a Jacksonville residence with Butler’s mother,
and (4) discovered that, as of September 4, 2018, Butler had listed
this address as his current residence.
G. Butler’s Testimony at His Probation Violation Hearings
On June 7, 2018, and August 27, 2018, the Florida
Commission on Offender Review held two probation violation
hearings for Butler. The recordings and transcripts from these
probation-violation hearings were introduced at Butler’s
suppression hearings.
At the June 7, 2018, probation-violation hearing, Butler
testified that he “willingly” offered his phone and his mother’s
phone to the officers.
At the August 27, 2018, probation-violation hearing, Butler
acknowledged that he handed over his personal phone willingly,
but this time Butler stated that he felt he had no choice in handing
over his mother’s phone. Butler also testified that (1) his personal
phone was the phone on the belt holster on his hip, and (2) the
smartphone in his pocket belonged to his mother. As discussed
earlier, Agent Privette’s testimony was that Butler had the
smartphone in his belt holster and Butler told him the phone in his
belt holster was his mother’s and the phone from his pocket was
his personal phone.
At some point after the August 27, 2018, probation-violation
hearing, Butler was released from state custody.
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 11 of 23
22-11628 Opinion of the Court 11
H. Butler’s Testimony at the Suppression Hearings
At the suppression hearings, Butler testified that he did not
consent to the FBI taking his mother’s smartphone from the
residence on May 2, 2018. Once again, Butler’s account was not
consistent with (1) Agent Privette’s testimony that Butler willingly
gave both phones to the agents, or (2) Butler’s testimony at the
June 7, 2018, probation-violation hearing that he willingly offered
his phone and his mother’s phone to the officers.
Butler also testified that: (1) he was not aware that the agents
were going to perform a forensic examination of the smartphone
when it was seized; (2) he never was told how to revoke his consent
to the search; and (3) he would have revoked his consent if he had
known that the FBI intended to perform the forensic examination.
Further, Butler testified that, after the Samsung smartphone
was taken, Agent Beccaccio gave him a card with her name and
number, and Privette’s name. Agent Beccaccio told Butler: “You
can tell your mother that if she wants her phone back, she can
contact us.”
Butler was in state custody from approximately May 2, 2018,
to August 31, 2018. Butler testified that during that time he was
not allowed to call anyone who would not accept collect calls.
I. Magistrate Judge’s Reports
On June 12, 2019, the magistrate judge issued a report and
recommendation (“R&R”), recommending that Butler’s first
motion to suppress be denied. The magistrate judge
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 12 of 23
12 Opinion of the Court 22-11628
(1) determined that Butler voluntarily consented to a search of
both phones and never revoked his consent, (2) accepted Agent
Privette’s testimony that the Samsung smartphone was holstered
on Butler’s belt and his personal phone was in his back pocket, and
(3) observed that there were “multiple inconsistencies” in Butler’s
testimony.
On February 13, 2020, the magistrate judge issued a second
R&R, recommending that the district court also deny Butler’s
second motion to suppress. As to the scope of Butler’s consent, the
magistrate judge determined that (1) Butler had not placed any
explicit limitations on the scope of the search, and (2) Butler “never
requested the return of the smart phone.”
The magistrate judge rejected Butler’s argument that he did
not know how to reach the agents to revoke his consent. In that
regard, the magistrate judge found (1) a person with Butler’s
intelligence and experience would have figured out how to reach
the agents, and (2) the agents gave Butler a card with their contact
information and told him that if his mother wanted the
smartphone back, she could contact them. The magistrate judge
also found that (1) Butler could not have used the Samsung
smartphone for work while he was in jail; (2) Butler was away from
work until at least the end of August 2018, at which point the
extractions had already occurred; and (3) Butler waived his
possessory interest in the Samsung smartphone by consenting to
the search of that smartphone.
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 13 of 23
22-11628 Opinion of the Court 13
Next, the magistrate judge determined that the eight-week
and fifteen-week delays between the May 2 seizure of the Samsung
smartphone and the June 26 logical and August 15 physical
extractions of this phone were not unreasonable, given the credible
testimony that the delays were due to backlog. The magistrate
judge observed that, because Butler never requested the return of
the Samsung smartphone, he could not argue that the delay
adversely affected his Fourth Amendment rights. The magistrate
judge concluded that, because Butler consented to the search of the
Samsung smartphone without limiting or revoking his consent, the
agents did not need to obtain a warrant before conducting the
forensic examination.
J. District Court’s Orders
Over Butler’s objections, the district court adopted both
R&Rs, accepted the magistrate judge’s credibility findings, and
denied Butler’s motions to suppress.
As to the reasonableness of the eight-week and fifteen-week
delays, the district court found that (1) there was no Fourth
Amendment violation, but (2) “law enforcement should have
nonetheless obtained a warrant after the passage of such a long
time, especially given that this was a forensic search of a cell
phone.” Citing Riley v. California, 573 U.S. 373, 134 S. Ct. 2473
(2014), the district court recognized that “[u]nder Fourth
Amendment jurisprudence, cell phones are unique.” However, the
district court explained that (1) Riley did not restrict consensual
searches, and (2) Butler’s possessory interest in the Samsung
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 14 of 23
14 Opinion of the Court 22-11628
smartphone was “minimal,” citing the pages of the R&R stating
that a defendant’s consent to a search of his property waives his
possessory interest in that property.
The district court also found that (1) Butler never revoked
his consent to the search or requested the return of the Samsung
smartphone, (2) the government had a legitimate interest in
retaining that smartphone because Butler admitted to using it to
view pornography, and (3) Butler had not shown that the delay
caused him any prejudice.
K. Trial and Sentencing
After the denial of his motions to suppress, Butler proceeded
to trial. The jury found Butler guilty as charged.
Because Butler had a prior sex offense conviction, the
probation officer determined that Butler was a repeat and
dangerous sex offender under U.S.S.G. § 4B1.5(a)(1)(A) and
increased his criminal history category from III to V. With a total
offense level of 39, Butler’s advisory guideline range was 360 to 840
months’ imprisonment. The district court sentenced Butler to
concurrent terms of 420 months’ imprisonment as to Count 1 and
240 months’ imprisonment as to Count 2, followed by 25 years of
supervised release.
II. DISCUSSION
As an initial matter, while Butler challenged the
voluntariness of his consent in the district court, he abandoned any
challenge to the district court’s ruling on that issue by failing to
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 15 of 23
22-11628 Opinion of the Court 15
brief it on appeal. See United States v. Campbell, 26 F.4th 860, 871
(11th Cir. 2022) (en banc). Additionally, Butler does not challenge
the district court’s credibility determinations on appeal. Thus, we
need address only the district court’s findings that (1) the
government’s logical and physical extractions were within the
scope of Butler’s consent, and (2) Butler had a “minimal”
possessory interest in the Samsung smartphone.3
A. Consent to Search
On appeal, Butler argues that the government’s forensic
searches of the Samsung smartphone exceeded the scope of his
consent.
The Fourth Amendment protects against unreasonable
searches and seizures. U.S. Const. amend. IV. A search or seizure
that is lawful at its inception may nonetheless violate the Fourth
Amendment if the manner of its execution unreasonably infringes
on a possessory interest protected by the Fourth Amendment.
See United States v. Jacobsen, 466 U.S. 109, 124, 104 S. Ct. 1652, 1662
(1984).
3 “When considering a district court’s ruling on a motion to suppress, we
review factual findings for clear error and application of law to the facts de
novo.” United States v. Plasencia, 886 F.3d 1336, 1342 (11th Cir. 2018). “Clear
error lies only where the record leaves us with the definite and firm conviction
that a mistake has been committed.” Id. (quotation marks omitted). Because
the government was the prevailing party below, the district court’s factual
findings are construed in the light most favorable to it. See id.USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 16 of 23
16 Opinion of the Court 22-11628
“A consensual search is confined to the terms of its
authorization. The scope of the actual consent restricts the
permissible boundaries of a search in the same manner as the
specifications in a warrant.” United States v. Strickland, 902 F.2d 937,
941 (11th Cir. 1990) (citations omitted). Further, “[w]hen an
individual gives a general statement of consent without express
limitations, the scope of a permissible search is not limitless.
Rather it is constrained by the bounds of reasonableness: what a
police officer could reasonably interpret the consent to
encompass.” Id.“Whether limitations were placed on the scope of consent,
and whether the search conformed to those limitations, is a
question of fact determined by the totality of the circumstances.”
United States v. Plasencia, 886 F.3d 1336, 1342 (11th Cir. 2018). A
district court’s factual findings as to these two issues will not be
overturned unless they are clearly erroneous. United States v. Blake,
888 F.2d 795, 798 (11th Cir. 1989).
B. Scope of Butler’s Consent
Here, the district court did not err in determining that the
government’s logical and physical extractions of the Samsung
smartphone were within the scope of Butler’s consent.
First, Butler argues that (1) he agreed only to let law
enforcement “take a look” at the Samsung smartphone, and (2) his
consent did not extend to logical and physical extractions of the
smartphone’s contents outside his presence almost five months
later. Butler, however, did not merely agree to let Agent Privette
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 17 of 23
22-11628 Opinion of the Court 17
“take a look” at his phone. Rather, the record evidence shows that:
(1) Butler consented when Agent Privette asked if he “could take a
look at” and “search” the Samsung smartphone; (2) Butler allowed
Agent Privette to take the Samsung smartphone to technical
personnel; (3) Butler agreed to unlock the phone for Agent
Privette; (4) Butler gave Agent Privette the phone’s password,
allowing technical personnel to examine the Samsung smartphone
outside his presence; and (5) Butler agreed to answer any questions
from Agent Privette about the contents of the Samsung
smartphone.
Additionally, during the May 2, 2018, search, Butler was
informed by Agent Privette that the agents were investigating
sexually explicit communications with a minor. See Plasencia, 886
F.3d at 1342–43 (observing that, in assessing the scope of a consent-
based search, courts consider “what the parties knew at the time to
be the object of the search” (quotation marks omitted)). Under
these circumstances, a reasonable person would understand
Butler’s statements that the agents could “take a look at” and
“search” his phones as extending to a forensic search of the phone’s
contents for sexually explicit communications, videos, and images.
See id.Further, Butler did not place any time limit on the search.
Over the next five months, Butler did not make any attempt to
revoke, limit, or modify his consent in any way. Given the absence
of a specific time limit or a revocation, the agents conducting the
forensic search could reasonably interpret the original voluntary
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 18 of 23
18 Opinion of the Court 22-11628
consent to encompass the administrative delays that occurred
before the forensic examinations were conducted. See Strickland,
902 F.2d at 941; see also United States v. Thurman, 889 F.3d 356, 361–
62, 368 (7th Cir. 2018) (concluding that a defendant’s verbal
consent to a search of his cell phone extended to a forensic
examination of the phone where (1) the purpose of the search was
to investigate the defendant’s recent drug sales, (2) the defendant
showed the agents names and numbers for drug-related contacts in
the phone without placing any limitations on his consent, and
(3) the defendant did not seek the return of the phone).
Second, Butler contends that he could not have revoked his
consent because (1) he did not know the FBI intended to search the
phone, and (2) he was in state custody without “access to the
normal channels of communication.” This contention lacks merit.
For starters, the record shows Butler knew that the FBI
intended to search the Samsung smartphone. Indeed, Butler
consented to a “search” of this phone, provided the agents with the
phone’s password, and allowed Agent Privette to take the phone
to agents who handled technical matters. After that examination,
Agent Privette informed Butler that (1) a pornographic website and
a Google Hangouts chat were running on the Samsung
smartphone, and (2) the FBI would try to identify the person
associated with the “Peanut the Unicorn” username on the Google
Hangouts chat found on the smartphone. After Butler’s interview
with Agent Privette concluded, the agents returned Butler’s
personal phone but kept the Samsung smartphone, and Butler did
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 19 of 23
22-11628 Opinion of the Court 19
not object or withdraw his consent. These facts show that
(1) Butler knew that FBI intended to search his Samsung
smartphone and (2) Butler had reason to suspect that the agents
would conduct a forensic search of the phone.
After consenting to a search of the Samsung smartphone,
Butler had multiple opportunities to revoke or limit his consent
during his interview with Agent Privette on May 2, 2018, but Butler
did not do so. Later that day, Agent Beccaccio gave Butler a card
with her contact information so that his mother could request the
return of the Samsung smartphone. Even if Butler lacked “access
to the normal channels of communication” after he was arrested
on May 2, 2018, there is no indication in the record that he ever
attempted to contact Agent Beccaccio or ask another person to
request the return of the Samsung smartphone on his behalf.
Based on the record as a whole, we conclude that the
forensic examinations of the Samsung smartphone did not exceed
the scope of Butler’s consent.4
4 Butler also argues that the government did not have probable cause to
believe that a crime had been committed when it conducted a forensic search
of his smartphone on September 21, 2018. However, because Butler
consented to the search of his smartphone and because the forensic search did
not exceed the scope of Butler’s consent, we need not address this argument.
See United States v. Harris, 928 F.2d 1113, 1117 (11th Cir. 1991) (observing that
“[a] search conducted pursuant to consent is a recognized exception to the
requirements of probable cause and a search warrant”).
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 20 of 23
20 Opinion of the Court 22-11628
C. Violation of Possessory Interest
Next, Butler contends that, in evaluating the reasonableness
of the search, the district court failed to give sufficient weight to his
substantial possessory interest in the smartphone, relying on Riley
and United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009).
When evaluating the reasonableness of the government’s
delay in obtaining a search warrant, we must carefully balance
governmental and private interests. United States v. Laist, 702 F.3d
608, 613 (11th Cir. 2012). In doing so, “rather than employing a per
se rule of unreasonableness,” this Court “evaluate[s] the totality of
the circumstances presented by each case.” Id. (quotation marks
omitted). “The reasonableness of the delay is determined in light
of all the facts and circumstances, and on a case-by-case basis.”
Mitchell, 565 F.3d at 1351 (quotation marks omitted).
In Riley, the Supreme Court observed that defendants have
a heightened privacy interest in cell phones, which the Supreme
Court described as “minicomputers.” 573 U.S. at 403, 134 S. Ct. at
2494. The Riley Court held that the search-incident-to-arrest exception
to the warrant requirement does not empower law enforcement
officers to search the contents of an arrestee’s cell phone. Id. at
385–86, 134 S. Ct. at 2484–85. The Supreme Court noted that the
typical search incident to arrest turns up a limited quantity of
evidence—namely, those items that are on the arrestee’s person,
such as a wallet—whereas the search of cell phone data could
reveal more information than an “exhaustive search of a
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 21 of 23
22-11628 Opinion of the Court 21
house.” Id. at 393–97, 134 S. Ct. at 2489–91. Riley, however, does
not address searches where the defendant consents.
More fundamentally, our Court has since identified a non-
exclusive list of factors to consider in determining whether a post-
seizure delay is unreasonable: (1) the significance of the
interference with the person’s possessory interest; (2) the duration
of the delay; (3) whether the person consented to the seizure; and
(4) the government’s legitimate interest in holding the property as
evidence. Laist, 702 F.3d at 613–14.
Here, the district court properly found Butler’s possessory
interest was minimal. The district court recognized that cell
phones are entitled to “unique” Fourth Amendment protection but
correctly explained that Riley did not restrict consensual searches.
Butler relies heavily on our Mitchell decision, but that search
was not consensual either and was a seizure of a computer hard
drive based on probable cause. 565 F.3d at 1350–53. In Mitchell,
our Court held that the government’s 21-day delay in securing a
search warrant, while holding a computer hard drive based on probable
cause, was unreasonable. Id. Our Court reasoned that
(1) defendant Mitchell had a “substantial” possessory interest in the
hard drive, given that “[c]omputers are relied upon heavily for
personal and business use,” and (2) the government’s justification
for the delay—that the case agent had to attend a training
conference—was “insufficient.” Id. at 1351–52. Mitchell is
inapposite here because the search in that case was based on
probable cause, not consent. See id. at 1350–53.
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 22 of 23
22 Opinion of the Court 22-11628
In contrast, Butler’s possessory interest in the smartphone
was diminished for several reasons. First, and most importantly,
Butler consented to the search of the smartphone, and he did not
revoke or modify his consent. See United States v. Stabile, 633 F.3d
219, 235 (3d Cir. 2011) (“[W]here a person consents to search and
seizure, no possessory interest has been infringed because valid
consent, by definition, requires voluntary tender of property.”).
Second, Butler did not request the return of his smartphone before
the forensic examinations were completed. See United States v.
Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012) (observing that, if “the
person from whom the item was taken ever asserted a possessory
claim to it[,] . . . this would be some evidence (helpful, though not
essential) that the seizure in fact affected [his] possessory
interests”).
Further, Butler told the agents that he used the Samsung
smartphone for work, but he was in jail starting on May 2, and he
could not have used that phone for work while he was in jail. In
fact, Butler was not released from state custody until after the
logical and physical extractions occurred on June 26, 2018, and
August 15, 2018. Thus, the district court properly found that
Butler’s possessory interest in the smartphone was “minimal.”
Butler does not challenge the district court’s other findings
concerning the reasonableness of the delay in searching the
smartphone. Therefore, he has not shown any error in the district
court’s determination that the government’s delay in searching the
Samsung smartphone was not unreasonable.
USCA11 Case: 22-11628 Document: 36-1 Date Filed: 05/30/2023 Page: 23 of 23
22-11628 Opinion of the Court 23
III. CONCLUSION
For the reasons outlined above, we affirm the denials of
Butler’s motions to suppress.
AFFIRMED.