United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Mr. Alexander's Motion to Suppress [ECF No.
38]. The Court held an evidentiary hearing on this Motion on
November 11, 2017, February 5, 2018 and April 18, 2018. The
Motion challenges the search of a Sprint cellular telephone
by Detective Leung on April 16, 2016 without a warrant.
Alexander argues that Leung received consent to search the
Sprint phone from a third person, a minor female
(“A.B.W.”), who did not have actual or apparent
authority to consent to a search of the phone. Alexander also
asserts that, as a minor, A.B.W. could not consent to a
search of the Sprint phone. Alexander concludes that the
fruits of the search of the Sprint phone must be suppressed
since the search of the phone was illegal. For the reasons
stated below, the Court denies the Motion to Suppress.
upon the evidence received on the record and the Court's
assessment of the credibility of witnesses, the Court makes
the following findings of fact. On April 16, 2016, A.B.W., a
minor female, approached security at the Orleans Hotel and
Casino and told them she was a missing juvenile who was being
sex trafficked. Orleans Security contacted the Las Vegas
Metropolitan Police Department (“Metro”). As
A.B.W. had indicated that she was being trafficked, Metro
dispatched a VICE detective, Detective Kenton, to the
Orleans. Kenton conducted an initial interview with A.B.W.
During this initial interview, A.B.W. confirmed her identity
and again indicated that she had been involved in
prostitution against her will and at the direction of another
person. Kenton found A.B.W. to be credible in the interview.
Kenton requested further assistance for the investigation and
Detective Leung was assigned and dispatched to the Orleans to
complete the investigation. Upon arriving the Orleans, Leung
discussed the initial interview with Kenton.
Leung then conducted a recorded interview of the A.B.W.
A.B.W. explained that in the middle of March 2016 she had
been abducted from the area of San Leandro, California by a
man who she identified as Defendant Vonteak
Alexander and others. She was then forced to travel
with them Los Angeles, California and coerced into engaging
in prostitution. Alexander also promised to buy A.B.W.
clothes and other things if she engaged in prostitution.
Under these circumstances, A.B.W. “agreed” to
prostitute herself for Alexander. According to A.B.W.
Alexander later brought her to Las Vegas to engage in
prostitution. She further explained that she engaged in
prostitution in California and Las Vegas and turned over the
money she made to Alexander.
had in her possession a Sprint cellular telephone with the
number 510-866-6448 (the “Sprint phone”) whose
search is the subject of the Motion. She did not have any
other phone in her possession, and she did not possess, while
in Las Vegas, a separate personal cell phone. A.B.W. provided
the number for the Sprint phone to Leung. A.B.W. identified
Alexander as the person who had brought her to Las Vegas for
the purpose of engaging in prostitution. A.B.W. told Leung
that the Sprint phone was a “trap” phone that
Alexander used to communicate with A.BW. and others while she
was engaged in prostitution for him. A.B.W. told Leung that
Alexander had given her the Sprint phone earlier in the day
for her use. She told Leung that Alexander will usually ask
to have the Sprint phone back at some point. Alexander had
not asked on April 16 to have the Sprint phone returned to
him. Leung found A.B.W. to be candid and credible during the
interview. The Court finds Leung's testimony on this
point and others to be credible.
the recorded interview, A.B.W. explained to Leung that she
had previously used the phone. She told Leung that she had
previously used the Sprint phone on other days. She explained
that Alexander had given her the Sprint phone and the access
code to the phone. A.B.W. indicated that she had used the
Sprint phone on April 16, 2016 to text and call Alexander as
well as others. She explained that Alexander primarily used a
cell phone with the number 916-807-5262.
then asked A.B.W. for consent to review the contents of the
Sprint phone. The Sprint phone at that time was locked with
an access code. A.B.W. consented to the examination of the
phone and provided Leung with the access code to unlock the
phone. With the access code, Leung was able to unlock the
Sprint phone on the first attempt. He first reviewed the text
messages on the phone that were sent by A.B.W. and received
by A.B.W. Leung found these messages to be consistent with
A.B.W.'s discussion with him about her communications
with Alexander. Leung observed messages sent to and received
from a cellular phone with the number 916-807-5262. This is a
number that A.B.W. had previously identified as a number she
normally called or texted to reach Alexander. At this time,
Leung only reviewed the text messages and call log on the
telephone. He did not conduct a full search of all of the
contents of the phone. Leung then asked A.B.W. if he could
impersonate her and text Alexander. She consented and Leung
engaged in a series of text exchanges on the Sprint phone
with someone he believed to be Alexander. These text
exchanges further corroborated A.B.W.'s description of
her relationship with Alexander in terms of their familiarity
and her acts of prostitution as Alexander's responses
suggested no confusion about who she was and the subject of
her texts. Leung did not access Alexander's Facebook
account through the Sprint phone and he did not send a friend
request or any other message to Alexander's Facebook
account from the Sprint phone. / / /
Consent - Actual Authority
is a recognized exception to the Fourth Amendment's
protection.” United States v. Arreguin, 735
F.3d 1168, 1174-75 (9th Cir. 2013). If consent
comes from a third party, the government must demonstrate the
third party had “shared use and joint access to or
control over a searched area.” Id. (internal
citations omitted). The Court need only determine that the
third party “possessed common authority over or other
sufficient relationship to the premises or effects sought to
be inspected.” United States v. Matlock, 415
U.S. 164, 171 (1974); see also United States v.
Tosti, 733 F.3d 816, 823 (9th Cir.
2013)(accord). Common authority is “joint access or
control for most purposes.” Matlock, 415 U.S.
at 171 n.7.
Ninth Circuit has also established that, even in
circumstances where a third party has limited access or
authority, a “defendant may assume the risk that the
third party will at times exceed the scope of authorized
access, as that is defined in precise and narrow
terms.” United States v. Sledge, 650 F.2d
1075, 1080 n.10 (9th Cir. 1981). Such assumption of risk may
occur where an individual allows a third party total control
of property or goods for even limited periods of time.
United States v. Kim, 105 F.3d 1579, 1582 (9th Cir.
Consent - ...